Mr D Seymour v Conectiv Supply Chain Solutions UK Ltd (formerly Technicolor Video Services (UK) Ltd): 1304444/2023 and 1308635/2023
EMPLOYMENT TRIBUNALS
Case No 1304444/2023, 1308635/2023
Between
Mr D SeymourClaimantConectiv Supply Chain Solutions UK Ltd (formerly Technicolor Video Services (UK) Ltd)Respondent
Before
Employment Judge Perry, Mrs B Hicks & Mr D FaulconbridgeMr A Rhodes (instructed by counsel) for respondentDate 10 December 2025
JUDGMENT
[1]The claimant’s complaints that the respondent failed to make reasonable adjustments do not succeed and are dismissed.[2]The claimant’s complaints that he was discriminated against because of something arising from disability do not succeed and are dismissed.[3]The claimant’s harassment complaints do not succeed and are dismissed.[4]The claimant’s unfair dismissal complaint is not well founded and is dismissed.
REASONS
References below in [] are to the bundle, [initials/number] are to the paragraph of a witness’ statement/a document and references in () are as the context admits to the paragraph of these reasons.[1]This hearing related to two conjoined claims which included complaints of 1.1. unfair dismissal 1.2. the failure to make reasonable adjustments 1.3. discrimination because of something arising from disability and 1.4. disability related harassment. 1 / 107[2]The respondent was part of a multinational specialising in the distribution of packaged media products. At the ned of the hearing the status of the respondent remained unclear so the tribunal sought to clarify this. It was informed by the respondent that:- 2.1. prior to 27 September 2022, the Respondent’s parent company was known as the Technicolor Group and the Respondent was known as Technicolor Video Services UK Limited. 2.2. the Technicolor Group also contained a digital content business which operated separately to the Respondent. On 27 September 2022 the digital content business split from the remainder of the Technicolor Group and retained the Technicolor name, albeit as a different legal entity. 2.3. the remaining part of the parent company rebranded as Vantiva and had two subsidiary companies, 2.3.1. the Respondent (which became Vantiva Supply Chain Solutions UK Limited) and 2.3.2. the “Connected Home” aspect of the business which makes broadband modems and Android TV boxes became Arris Global Limited (“Arris”). 2.4. Given this is how it is referred to in the documentation before us we will refer to the respondent as “Vantiva”. 2.5. On 1 April 2025 Vantiva was sold to a venture capitalist company and has since operated under the name Conectiv Supply Chain Solutions UK Limited. We have corrected the respondent’s name in the title to these proceedings to reflect that.[3]The original judge assigned to hear the claim was unable to hear it and so the hearing commenced at 2:00 when Judge Perry completed another hearing. Having clarified the issues and adjustments for Mr Seymour and his partner, Ms Chater, who was representing him, the reminder of day 1 was spent undertaking case management. Having done so the parties were then released until 1:00pm on day 2 so the panel could read.[4]Save where necessary and with the agreement of the parties we do not propose to relay the detail of the medical and other conditions the witnesses have. We have agreed to try to limit any references to them and to give the parties an opportunity to consider our judgment before it is placed on the internet. Having said that the adjustments required were identified as follows:- 4.1. Mr Seymour: extra breaks, a request that he was not badgered, antagonised, interrupted and that he was not treated in a hostile way, 4.2. Ms Chater: breaks & extra time to ask questions, and 4.3. Mrs Harrison: extra time to answer questions and breaks if required.
THE EVIDENCE
[5]We originally had before us 2 / 107 5.1. a bundle of 503 pages (without the index), 5.2. a chronology, 5.3. cast list and 5.4. list of key documents.[6]We also had before us two statements each for Mr Seymour and Ms Chater.[7]From Vantiva we had statements from 7.1. Miss Samantha Waters, who was formerly a “People Partner Advisor” working for Vantiva and who is currently a “People Partner Manager” for Arris, 7.2. Mrs Jacqueline Harrison, who was and remains a “People Partner Manager” of Vantiva, 7.3. Mr Francis Beaton, Vantiva’s UK Distribution Director, 7.4. Mr Paul Jarman, an Operations Manager employed by Vantiva and who was Mr Seymour’s line manager at the time of the events that concern us, 7.5. Mr Justin Sheen, Vantiva’s European Supply Chain Planning Director. Mr Sheen is based in London, and his role is within the central function of Vantiva’s business and includes liaising between its manufacturing facility in Poland and its distribution site in Rugby, and 7.6. Mr Michael Price, Vantiva’s Operations Manager at it’s Rugby site, and the dismissing officer. CONTEXT[8]Mr Seymour raised two grievances and appeals against the outcome of each of those grievances. The grievances related to similar matters raised by Mr Seymour as part of these claims. The grievances and the appeals were respectively heard by:- 8.1. grievance one: Mr Beaton (see above) - outcome dated 25 November 2022 [411], 8.2. the appeal in relation to grievance one: Mr Paul Edwards, UK Supply Chain Director - outcome dated 10 January 2023 [416], 8.3. grievance two: Mr Richard Hope, Supply Chain Process Director - outcome dated 9 March 2023 [438], and 8.4. the appeal in relation to grievance two: Mr Sheen (see above) - outcome dated 9 June 2023 [453].[9]Like Mr Sheen, Mr Hope was based in London and had a European remit.[10]None of the grievances or appeals were upheld.[11]In relation to dismissal:- 11.1. The decision maker was Mr Price. The dismissal letter was initially mistakenly sent without a date [467]. Vantiva argue that was subsequently remedied on 3 / 107 19 October 2023 [311] giving a termination date being 17 October 2023. Based on Gysda Cyf 1 it is common ground the termination date is incorrect as the date of dismissal is to be treated as when it was received by Mr 11.2. Mr Seymour’s appeal against dismissal was dated 23 October 2023 [327]. This was subsequently treated as withdrawn.[12]Having identified the witnesses who would be giving evidence, their availability and the estimated time they would take to be heard. It appeared the time estimate on any basis was wholly inadequate, that aside given the effects this claim have plainly had on Mr Seymour the panel concluded it was in the interests of justice that even if the claim went part heard we must make use of the trial dates and relist on other dates rather than postpone as that would result in the claim being heard quicker.[13]The first claim involves discrimination only. The second both discrimination and unfair dismissal. Timing issues arise in relation to both.[14]As to the first it was presented on 4 June 2023 following early conciliation between 19 April 2023 and 5 May 2023. Accordingly, any acts that occurred before 20 January 2023 are potentially out of time.[15]The second was presented on 11 December 2023 so any acts that occurred before 22 August 2023 are potentially out of time. SUMMARY OF THE ISSUES[16]Shortly after service of the claim Vantiva sought further details so that it knew the claim it had to meet. It was informed that would be addressed at case management. A list of issues was clarified at the case management hearing, the case was prepared on that basis, no applications having being made to amend them. Despite that throughout the hearing Ms Chater sought to address matters that went beyond those issues and in relation to some points, upon which no evidence had been presented. We understand she was trying to do her best to help Mr Seymour but that causes obvious prejudice to Vantiva.[17]We have sought to address in our factual findings how we would have addressed them had they formed part of the issues before us. We have done that principally so Mr Seymour has a decision and some “closure” on those points to enable him, should he wish to do so, to move on. We sincerely wish him a speedy recovery.[18]We address our findings on the various complaints in detail below. Suffice at this stage to say:- 18.1. As to the unfair dismissal complaint:- 18.1.1. Vantiva argues Mr Seymour was dismissed on the grounds of medical capability on 17 October 2023 and a payment in lieu of notice was paid, 1 Gisda Cyf v Barratt [2010] UKSC 41 4 / 107 18.1.2. Polkey and contribution (non engagement) arguments are raised (both were explained to Mr Seymour and Ms Chater), 18.1.3. Mr Seymour argues that if Vantiva had undertaken the adjustments suggested he would have been able to go back to work, 18.1.4. Vantiva argues that none of the adjustments sought were suggested by Occupational Health (“OH”) or Mr Seymour’s GP despite attempts to obtain detailed OH/medical advice and 18.1.5. Mr Seymour argues that Vantiva’s OH provider falsified an OH report relating to an OH appointment on 20 December [233-236]. Vantiva argues there was no report. 18.2. As to the failure to make reasonable adjustments complaints:- 18.2.1. five provisions, criteria or practices are relied upon, and 18.2.2. Vantiva accepts each was capable of being a PCP, it accepts two were applied; (2) Requiring medical records / OH assessments and (5) dismissing him, but disputes the others were applied. In any event it denies any substantial disadvantage ensued. 18.3. As to the discrimination because of something arising from disability complaint 18.3.1. Vantiva accepts the something, Mr Seymour’s sickness absence, arose from Mr Seymour’s disability from 11 November 2022, 18.3.2. Two acts of unfavourable treatment are argued; 18.3.2.1. inviting Mr Seymour to a stage 1 long term absence meeting in January 2023 and 18.3.2.2. dismissing him. 18.3.3. Vantiva accepts dismissal is capable of being unfavourable treatment. It does not accept not inviting Mr Seymour to a stage 1 meeting dismissal is capable of being unfavourable treatment, 18.3.4. Vantiva accepts the alleged unfavourable treatment arose from the something and 18.3.5. It relies on two justification arguments as set out in its amended grounds of resistance (“aGoR”) [aGoR/63 & 65 at 136-137]. 18.4. As to the disability discrimination complaints 18.4.1. Mr Seymour’s impairments for the disability discrimination complaints (depression / anxiety / cognitive impairment / suicidal thoughts) are accepted from 11 November 2022 onwards, 18.4.2. Knowledge of disability for the s.15 complaint is accepted from 26 April 2023 (referencing a GP letter dated 20 April 2023 [350]). 5 / 107 18.4.3. Thus, Vantiva had knowledge of disability from the date of the second act of unfavourable treatment but not the first 18.4.4. Vantiva disputes knowledge in its entirety for the purposes of the s.20/21 complaint. 18.5. As to the notional eight heads of the disability harassment complaint:- 18.5.1. One head is broken down into 2 parts each of which again fall into two further divisions and 18.5.2. whilst Vantiva accepts the facts underpinning some of the complaints occurred others did not and it denies any constituted or were capable of constituting harassment. ISSUES ARISING DURING THE REMAINDER OF THE HEARING[19]We do not propose (nor would it be feasible) to address every matter that arose during this long hearing but of those that arose, the following are of note:-[20]Mr Seymour started giving evidence after lunch on day 2. The hearing was specifically listed as remote to address the 0personal circumstances Mr Seymour and Ms Chater. As such they were both positioned in a room sitting at what appeared to be a desk at 90⁰ to each other. Mr Rhodes raised that Ms Chater was assisting the claimant whilst on oath. None of the panel saw the behaviour complained of and so the judge initially gave a reminder of what was required. Following Mr Rhodes raising the issue again the tribunal considered the practicality of rearranging where they were sitting. It became clear that was not possible. As a result the Tribunal indicated it would proceed as best it could in the light of the overriding objective and Vantiva could raise those as matters going to the weight the panel attached to Mr Seymour’s evidence. Mr Rhodes raised no objections.[21]On many occasions during the remainder of his evidence Mr Seymour turned off his screen and appeared to leave the room from which he was giving evidence. He clearly found the questions and scenario very difficult. That is understandable given the mental health problems he has and has had. We gave him breaks whenever they were requested and having identified that prior to him finding it difficult to continue and turning off his screen [REDACTED], the Tribunal took additional breaks when it felt they were required.[22]Whilst at points Mr Seymour alleged he was being badgered by Mr Rhodes in our judgment Mr Seymour was not answering the question posed such that it had to be repeated several times. The judge attempted to assist by explaining the question to him where possible and during one of breaks the panel checked if an alternative to putting the questions being posed could be found given the distress they were causing. Based on the way the claim was being put and having considered various alternatives we concluded there was no alternative. Notwithstanding the distress this caused to Mr Seymour, on day 3 Ms Chater very kindly volunteered that the way the panel had been conducting matters was to quote her “brilliant and” she and Mr Seymour were very grateful. She made further similar comments at a number of other points throughout the trial. We are grateful to her for that reassurance. 6 / 107[23]On day 4 following Mr Seymour having turned off his screen [REDACTED] trying to prevent Mr Seymour leaving the room. The Tribunal adjourned the hearing for day. Overnight the Tribunal received an email indicating she would not be in a position to join the hearing the next day. Due to her own state of health the Tribunal accepted this at face value without the need for medical evidence and excused her attendance. The Tribunal explained to Mr Rhodes we did not propose to hear from him given the absence of Ms Chater and Mr Seymour other than 23.1. to indicate it would be helpful to avoid the distress the questions had put Mr Seymour for Vantiva to identify the concessions it said Mr Seymour had made during cross examination and their effect, and to seek its view on his limited release from the oath (which he remained under) so Ms Chater could respond on his behalf. The Tribunal made clear that was a suggestion and the parties would need to confirm if they were agreeable and if so apply for a limited release from the oath for that purpose; and 23.2. The subject of pseudonymisation/anonymisation given the events we had heard about.[24]As to the latter Mr Rhodes indicated Vantiva was concerned given various rumours that were circulating that if successful it would be unable to properly address those rumours if the pseudonymisation/anonymisation order was made but was content for sensitive medical information to be removed form any judgment.[25]Mr Rhodes also asked how the Tribunal wished to have the issue of Vantiva’s various policies addressed. The panel indicated that they were relevant documents and needed to be disclosed and Vantiva should apply to admit a supplemental witness statement (annexing the policies) addressing why they had not been included in the original bundle.[26]The Tribunal then outlined the contents of a letter giving directions the panel proposed to send to the parties raising the points we make above and reminding Mr Seymour that he remained on oath. The Tribunal also sought to identify the dates on which the hearing could be relisted. That letter was dated 21 February and sent by email on 24 February.[27]The parties subsequently sought permission for the limited release of Mr Seymour from the oath and Vantiva sent a list of concessions it suggested had been made.[28]Ms Chater’s letter of 21 July seeking permission was not initially referred to the Judge. In the interim:- 28.1. on 24 September the respondent made an application to rely upon a supplemental witness statement from Mrs Harrison that it attached along with annexes containing several of it’s policies and identifying their changes over time. 28.2. on 25 September Ms Chater objected to their inclusion.[29]Ms Chater’s letter of 21 July was then referred to the Judge. Before he addressed the above he asked for clarification from Vantiva if it objected to the release of Mr Seymour from his oath so his instructions could be taken on Vantiva’s application to admit the supplemental witness statement. Vantiva agreed. 7 / 107[30]On 30 September a witness order was also sought by Vantiva for Mr Price on the basis he had left the respondent’s employ and had stated he was unwilling to attend. It was granted.[31]On 2 October Ms Chater indicated she would take instructions on the concessions but that she would be unable to do so immediately due to a matter we do not propose to address here. The panel take no issue in that regard.[32]A re-reading day was able to be arranged for the panel prior to the reconvened hearing. That is not included in relation to the numbering of the hearing days below.[33]Having considered the applications, by an email of 3 October the Tribunal determined that despite the supplemental witness statement, application to admit the statement and documents appended not being sent to Mr Seymour until 24 September or thereabouts and no explanation for the delay being provided given 33.1. they were documents that were relevant and necessary, 33.2. should have been disclosed in any event and 33.3. the witness statement addressed questions the Tribunal would have wanted to ask.[34]However the Tribunal ordered the respondent provide the full versions of the policies and where the extracts in the annexes could be found to ameliorate any prejudice to Mr Seymour not least because he was still on oath at the time.[35]Also, on Friday 3 October Mr Seymour was provided with e-copies of the various polices and documents. Late on, that day Mr Seymour asked Vantiva to provide hard copies.[36]On Sunday 5 October, the day before the first day of the reconvened hearing, Ms Chater wrote to the Tribunal and Vantiva in relation to the suggested concessions.[37]On the first day of the reconvened hearing 6 October 2025 (Day 6 overall) 37.1. Save in relation to one issue [7.1.8] (the sole issue that concerned Mr Sheen) Ms Chater confirmed all other complaints continued to be pursued. 37.1.1. That was notwithstanding the various concessions made by Mr Seymour in cross examination concerning not only the harassment but other complaints. It became apparent that was because Mr Seymour considered the test for harassment was based upon his subject view alone. The panel asked Ms Chater to consider this and referred her to the Equality and Human Rights Commission Code of Practice on Employment (the “EHRC Code”) so she could take further instructions once he was off oath:- “7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an 8 / 107 intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.” 37.1.2. Unfortunately when we checked in with her thereafter on the days following it appeared she had been unable to do so due to other matters arising. 37.2. Full versions of the policies the additional papers the Tribunal had ordered Vantiva to send to Mr Seymour arrived (just as the hearing was commencing) and the additional pages were added to the bundle. 37.3. Vantiva explained to the Tribunal Mr Price had informed them he was unwilling to attend but it did not pursue the point 37.4. Ms Chater indicated to the panel that her personal condition had deteriorated. As we state above we do not propose to relay the circumstances here as this judgment will be posted on the internet. The only additional adjustment she sought was the opportunity to take medication (via a break) if required. Again, in addition to the additional breaks over and above the norm that she sought on several occasions the panel insisted on additional breaks for the benefit of her or Mr Seymour whenever it appeared they were upset or in need of it. 37.5. On a couple of occasions during her cross examination Ms Chater laughed at the questions posed - the judge explained he understood the situation was difficult but that was failing to show courtesy and respect and could only make an already difficult situation worse. She immediately apologised and Mr Rhodes indicated he took no issue. 37.6. During the cross examination of Mr Seymour he suggested that had Mrs Harrison made adjustments he might have been fit to return. When asked what he was referring to he suggested that given she had sent questions in relation to fitness she could have also sent questions in relation to the 9 / 107 disciplinary investigation which would have allowed that to be concluded. He accepted that was not one of the adjustments contended for. Ms Chater then asked if she could add that as a complaint. The judge indicated that any application to amend should have been made earlier and it would cause considerable prejudice to Vantiva and potentially mean the trial would have to go off if that was done now so it could address the issue. The application was refused. We address the issue in any event in the evidence below. 37.7. During Ms Chater’s cross examination it transpired she had made a recording whilst in the car park outside the venue where the grievance meeting conducted by Mr Beaton was held. She indicated she was not aware that needed to be disclosed. The judge stated that as there was a dispute what was said it should have been disclosed and ordered that to be done overnight.[38]On 7 October 2025 (Day 7 overall) 38.1. overnight the recording of the discussion we refer to at (37.7) was provided followed at 09:45 (fifteen minutes before the start of the hearing) a transcript from Ms Chater. Mr Rhodes did not therefore have an opportunity to review the transcript and take instructions. It was agreed that should be played. The quality was poor so it was played for a second time and the parties asked to prepare a transcript setting out what was agreed was said and what was not. 38.2. Mr Price did not attend in accordance with the witness order. A brief discussion on the (limits of the) tribunal’s powers regarding contempt followed. The judge indicated that if he did not attend on the second day of the witness order (9 October) the usual practice was that the panel would give such weight to his evidence as it deemed appropriate. Mr Rhodes was agreeable to that. 38.3. At the start of the day the Judge reminded the parties about the issue of pseudonymisation/anonymisation (see (23.2)) Mr Rhodes repeated Vantiva’s position (see 24)). The panel indicated they intended to prepare a judgment as sensitively as the need to relay the facts and before this was posted on the internet the parties could raise make applications if appropriate to include their suggested way of addressing those matters. 38.4. The panel started hearing evidence a little later than usual (10:45) given the issue of the recording and other house keeping matters. The panel indicated it would break at 11:15 (a little later than usual). When we got to the break Ms Chater indicated the district nurse was going to attend at 11:30 for half an hour or so and asked the panel to break later. The panel agreed. On the resumption we did however ask her to try to give the panel more notice so we could plan the day better. The nurse attended each subsequent day and Ms Chater had to take additional lengthy breaks which the Tribunal accommodated. 38.5. As a result of the questions put to Mr Beaton the Tribunal asked for the OH referral to be provided (see (250) and the following paragraphs )[39]On 8 October 2025 (Day 8) 10 / 107 39.1. Extra documents concerning the OH referral (see the preceding subparagraph) and transcript of the recording (see (37.7 and 156 - 157)) were added to the bundle as pages [522 - 542] 39.2. Despite a witness order being issued Mr Price did not attend. The panel indicated it would address the matter as set out at (38.2) above. there were no objections. 39.3. Following a request from the panel Mr Rhodes agreed to provide Ms Chater with a copy of any authorities on which he was intending to refer in advance of the usual time for doing so. 39.4. The parties agreed to make an early start the next day at 9:30 so the evidence of the final witness (Mrs Harrison) could be concluded prior to the nurse arriving at 11:30 so both Ms Chater and Mr Rhodes could have a lengthy break before making closing submissions 39.5. When doing providing Ms Chater with a copy of the authorities that he relied upon Mr Rhodes reminded Ms Chater of certain points made by the Tribunal (his email of 19:54 on 8 October 2025):- “I hope you are well. Please see attached the authorities I intend to rely upon in this case. As EJ Perry indicated today, I have attached the relevant authorities that I intend to rely upon tomorrow. You were previously sent two of them on 20 February 2025 during the previous hearing. (Tameside Hospital NHS Foundation Trust v Mylott and Lloyds Bank Plc v Hill). You are not expected to read these authorities in full (although you can do so if you wish). As requested by EJ Perry, I have summarised the attached cases below. Please do not hesitate to speak to EJ Perry if anything I have written is unclear or you have any further questions about the cases. I have tried to summarise the law as fairly as possible, but again do feel free to raise my summaries with EJ Perry if you need further clarification.” 39.6. The copies of the caselaw was attached and helpfully summarised for Ms Chater by Mr Rhodes as follows:- “Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0352/09 - The duty to make reasonable adjustments does not extend to enabling a disabled employee who is no longer able to do the work to leave the employment on favourable terms. Lloyds Bank Plc v Hill UKEAT/0173/19/LA, UKEAT/0174/19/LA, UKEAT/0233/19/LA - Distinguishing Mylott - the failure to give an undertaking that the Claimant would not work with two colleagues and offer a severance package equivalent to that provided on redundancy in the 11 / 107 event that, at a later stage, the Claimant found themselves unable to continue working. Whitbread pic (trading as Whitbread Medway Inns) v Hall [2001] I.C.R - Whether a dismissal falls within the range of reasonable responses applies to the procedural steps taken as well as the substantive decision. Wandsworth London Borough Council v D’Silva and Another [1998] IRLR 193 - Whether a particular provision of an employer’s code of practice is contractually binding depends on whether it should properly be regarded as conferring a right on employees or as setting out no more than good practice which managers were intended to follow. Westminster City Council v Cabaj [1996] I.C.R. 960 - A breach of a contractual dismissal procedure is relevant but does not inevitably lead to a finding that the dismissal was unfair. Pemberton v Inwood [2018] I.C.R 1291 - In a harassment case, a tribunal must consider both whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as having that effect (the objective question). Royal Bank of Scotland v McAdie [2008] ICR 1087 - In cases where the employer is culpable for an employee’s incapacity, it may be necessary to go the ‘extra mile’ before dismissing them. Elmbridge Housing Trust v O’Donoghue [2004] EWCA Civ 939 - Where an employee refuses to co-operate with an employer's request to obtain medical information, the employer may dismiss fairly based on the evidence available to it. Pipe v Coventry University Higher Education Corporation EWCA Civ 191 2 - the duty to make reasonable adjustments sets a floor for the proportionality requirement. If a PCP causes a substantial disadvantage which is reasonable to alleviate, and this is not done, then any resulting unfavourable treatment is unlikely to be a proportionate means of achieving a legitimate aim.” 2 Whilst the year of the citation (2024) was omitted this had previously been given and in any event could be discerned from the authority which was attached to the email. 12 / 107 39.7. Ms Chater was also referred by the Tribunal amongst other matters to the EHRC Code 3 and ACAS 4 Code of Practice on disciplinary and grievance procedures. 39.8. Ms Chater responded to Mr Rhodes’ email:- “Dear Mr Rhodes, Thank you for your most gracious enquiry into the state of my health this evening, I am happy to tell you I am feeling rested and am now back at my desk in preparation for tomorrows hearing. I appreciate the summaries of the relevant authorities you intend to rely upon and confirm I will read through them in preparation for tomorrows hearing. I hope you have a restful evening.” 39.9. At 23:06 Mr Rhodes sent a further email apologising for it being a second email before going on to say:- “I have noted an additional case I wish to use O'Brien v Bolton St Catherine's Academy [2017] I.C.R. 737 - The principle here is that, although the wording for unfair dismissal and s15 discrimination arising from disability are different, there should be no distinction for long term sickness and therefore the factors to be weighed in respect of justification in a s15 discrimination arising case are substantively the same as those to be considered for unfair dismissal.”[40]On 9 October 2025 (Day 9) 40.1. At 09:25 Mr Rhodes forwarded closing submissions to the Tribunal and Ms Chater (having provided the authorities listed above overnight). 40.2. At the start of the hearing (09:30) Ms Chater told us she had had a bad night sharing with Mr Rhodes and the panel her health position. We do not propose to go in to that in this public judgment. The Tribunal was assured by her, despite panel reservations, that both she and Mr Seymour wished to continue. It was made very clear they did. The panel could clearly see the merit to both Ms Chater and Mr Seymour of doing so, but because of our concerns, indicated we would only do so on the basis Ms Chater would tell us if a break was required and we reserved the right to insist on taking a break if we felt it was appropriate. 40.3. Ms Chater told the panel she had re-arranged the time of the nurse visit for 14:00. Again, the panel raised no issue about the short notice but did ask 3 https://www.equalityhumanrights.com/sites/default/files/employercode.pdf 4 https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures/html 13 / 107 how did she proposed the day proceed. She indicated she had reviewed her questions for Mrs Harrison and they had reduced, asked for ¾ hour to complete her submissions in writing as she did not wish to read them due (again we do not propose to relay the explanation given here). The judge explained those matters were not an issue for the panel but if it assisted her then we would read her submissions and give her opportunity to expand if she wished. 40.4. The Tribunal asked Mr Rhodes if he wished to make oral submissions in addition to those in writing. He indicated save for any panel questions, he was happy to rely upon his written submissions. 40.5. Having concluded the evidence of Mrs Harrison in good time the panel broke to read Mr Rhodes’ submissions. On returning at the appointed time we indicated that we would require slightly longer but first wished to clarify a number of points. Having done so we broke again. 40.6. Having reconvened and addressed any final questions to Mr Rhodes we broke again to give Ms Chater extra time over that sought, to finalise her submission before the nurse arrived. She did so and the panel read her submissions during the extended break. 40.7. When we reconvened the judge clarified a few points with Ms Chater and explained how many of the points made went beyond the points raised in the issues or the evidence led. The Law UNFAIR DISMISSAL
The Law
[41]Where, as here, the claimant was an employee, has been continuously employed for 2 years, and a brought a claim for unfair dismissal within the relevant time limits the employee concerned has the right not to be unfairly dismissed 5.[42]In such cases it is for an employer to show the reason (or, if there was more than one, the principal reason) for dismissal was one of the potentially fair reasons. The potentially fair reason relied upon here is capability.[43]Capability is defined in s. 98(3)(a) ERA as “… capability assessed by reference to skill, aptitude, health or any other physical or mental quality, …”[44]Mr Seymour argues he was or should have been made redundant. Section 139 ERA sets out the definition of redundancy and provides: “(1) … an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -(a) the fact that his employer has ceased or intends to cease— 5 s. 94 Employment Rights Act 1996 (ERA) 14 / 107 (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or(b) the fact that the requirements of that business- i) for employees to carry out work of a particular kind, or ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”[45]The "reason" for dismissal was classically assessed by reference to the set of facts known or beliefs held by the employer which caused it to dismiss the employee 6 and that includes information coming to the respondent’s knowledge on the hearing of the appeal 7. Whilst that formulation may not be perfectly apt in every case, the essential point remains a valid one; the "reason" for dismissal connotes the factor(s) operating on the mind of the decision-maker which caused him/her to take (or, as it is sometimes put, what "motivated”) the decision 8. The Court of Appeal has repeated that view; the tribunal is obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss 9.[46]If a potentially fair reason is shown by the employer, the Tribunal must then go on to assess the fairness of the dismissal. The starting point for that question is the words of s.98(4) Employment Rights Act 1996 (“ERA”). The burden of doing so is neutral:- “…the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[47]When assessing if the employer acted reasonably in all the circumstances the Tribunal must not carry out its own assessment of the reasonableness of the employer’s conduct using its own subjective views as to what was the right course to adopt10. The role of the Tribunal is instead to decide in the circumstances if the decision to dismiss and the procedure adopted fell within the band of reasonable responses which a 6 Abernethy v Mott, Hay & Anderson [1974] ICR 323 CA per Cairns LJ at 330B-C 7 Browne-Wilkinson P in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 (EAT) at [95] approved by Lord Bridge in West Midlands Co-Operative v Tipton [1986] IRLR 112 (HL) 8 see also The Co-Operative Group Ltd v Baddeley [2014] EWCA Civ 658 [41] 9 Per Underhill LJ in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632. That is subject only to the possible qualifications discussed at [62 & 63] therein. 10 Orr v Milton Keynes [2011] ICR 704 CA 15 / 107 reasonable employer might have adopted. If the dismissal and preceding procedure falls within the band, the dismissal is fair, if outside the band, unfair11. DISABILITY[48]Section 6(1) EqA provides that a person (P) has a disability if— “(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”[49]It is conceded by Vantiva that Mr Seymour was a person with a disability namely depression / anxiety / cognitive impairment / [REDACTED] from 11 November 2022 onwards. The component parts of the definition so far as they concern us are set out at (61). THE FAILURE TO MAKE REASONABLE ADJUSTMENTS[50]Section 39(5) EqA imposes a duty to make reasonable adjustments upon employers. Where such a duty is engaged sections 20, 21 and 22 and Schedule 8 apply. Section 20(2) EqA states that the duty comprises three requirements. Insofar as is relevant for us, where the absence of an auxiliary aid, a physical feature or a provision, criterion or practice (‘PCP’) applied by the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage.[51]A substantial disadvantage is one which is more than minor or trivial 12.[52]In Lamb v The Garrard Academy [2018] UKEAT 0042/18 Simler P, as she then was, at [20] reinforced the importance of identifying the relevant PCP and the precise nature of the disadvantage it creates in relation to a disabled individual by comparison with its effect on non-disabled people citing Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 (CA). She went on to state :- “… The nature of the comparison required in a given case will depend on the disadvantage caused by the relevant arrangements. Where the disadvantage is the risk of dismissal for lack of capability, the comparator is likely to be an able-bodied person not at risk of dismissal because capable of performing the job (as for example in Archibald v Fife Council [2004] UKHL 32). In a case where the complaint concerns the requirement to maintain a certain level of attendance at work to avoid disciplinary sanction and possibly dismissal, although both able-bodied and disabled employees will suffer stress and anxiety when ill and unable to attend work, the risk of this is likely to be greater for disabled employees whose disability results in more frequent or longer absences, making it harder for them to comply with the requirement to attend work on a regular basis.”[53]It is tested by comparison with what the position would be if the disabled person in question did not have a disability; "the proper comparator is readily identifiable by 11 Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT 12 s. 212(1) EqA. That reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people. see paragraph 8 of Appendix 1 EqA, EHRC Code; Sheikholeslami v The University of Edinburgh [2018] IRLR 1090 [49] 16 / 107 reference to the disadvantage caused by the relevant arrangements"13. For this reason, a like-for-like comparison is not required and there is no need to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances14. Instead if the PCP bites harder on disabled people than it does on those without a disability, putting that employee at a substantial disadvantage compared to the non-disabled, that is sufficient 15.[54]As to what is meant by “provision, criterion or practice” (“PCP”) paragraph 6.10 of the EHRC Code suggests that phrase “should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications …”. In line with authorities pre-dating the EqA this includes one-off decisions and actions and may also include decisions to do something in the future, such as a policy or criterion that has not yet been applied.[55]If the duty to make adjustments is engaged the steps it requires to be taken are those that were reasonable to avoid the disadvantage. Whether a particular adjustment is reasonable has to be judged objectively; it is not simply a question of deciding whether the process of reasoning by which a possible adjustment was considered was reasonable16. The focus is on the practical result of measures that can be taken17. The EHRC Code at paragraph 7.29 states that what is a reasonable step "depends on all the circumstances of the case." before giving a list of factors to be considered.[56]The question if, and to what extent, the step would be effective to avoid the disadvantage is always an important one 18:"18. … given the language of section 20(3) - where the steps required are those that are reasonable to avoid the disadvantage - the question whether, and to what extent, the step would be effective to avoid the disadvantage, will inevitably always be an important one19. Thus if there was no prospect of the proposed step succeeding in avoiding the disadvantage, it would not be reasonable to have to take it; conversely, if there was a prospect - even if considerably less than 50 per cent - it could be20. The reasonableness of a potential adjustment need not require that it would wholly remove the disadvantage in question: an adjustment may be reasonable if it is likely to ameliorate the damage 21; a, or some, prospect of avoiding the disadvantage can be sufficient 22. All that said, the uncertainty of a prospect of success will be one of the factors to weigh in the balance when considering reasonableness 23." 13 per Maurice Kay LJ in Smith v Churchill Stairlifts plc [2005] EWCA Civ 1220; [2006] ICR 524 at [39] approved by Elias LJ in Griffiths at [21] 14 Sheikholeslami [48] 15 Sheikholeslami [49 & 52] and Griffiths [58] 16 Firstgroup Plc v Paulley [2014] EWCA Civ 1573, [2015] 1 WLR 3384, [2014] EWCA Civ 1573 17 Royal Bank of Scotland v Ashton UKEAT/542/09, [2011] ICR 632 at [24]. 18 South Warwickshire NHS Foundation Trust v Lee [2018] UKEAT 0287/17 the EAT at [37] (albeit a case on s.15 EqA) repeating the guidance given in Birmingham City Council v Lawrence [2017] UKEAT/0182/16 19 Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins [2014] ICR 341 EAT per HHJ Richardson [59] 20 Romec Ltd v Rudham UKEAT/0069/07 per HHJ Peter Clark at [39] 21 Noor v Foreign & Commonwealth Office [2011] ICR 695 EAT per HHJ David Richardson at 33 22 per HHJ McMullen QC at paragraph 50 in Cumbria Probation Board v Collingwood UKEAT/0079/08 and Keith J at paragraph 17 in Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10 23 see per Elias LJ in Griffiths [29] and per Mitting J at paragraph 18 in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley UKEAT/ 0341/15 17 / 107[57]To put it another way: "… in our judgment an adjustment which gives a Claimant ‘a chance’ to achieve a desired objective does not necessarily make the adjustment reasonable. The material question for an ET in considering its effect, which is one of the factors to which regard is to be paid in assessing reasonableness, is the extent to which making the adjustment would prevent the PCP having the effect of placing the Claimant at a substantial disadvantage. That enquiry is fact sensitive." 24 Knowledge[58]Paragraph 20 of Schedule 8 of the EqA provides “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know - … (b) ... that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement."[59]The EHRC Code says this “6.19. For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”[60]Thus, there is no duty on an employer to make reasonable adjustments if it does not know or could not reasonably be expected to know that the employee has a disability and is likely to be placed at the relevant substantial disadvantage.[61]To amount to knowledge of a disability, there must be knowledge, whether actual or constructive, of the matters set out in s. 6(1) EqA :(i) the impairment (whether mental or physical);(ii) the impairment is long term 25;(iii) the impairment has had a substantial (non trivial) adverse effect on the individual's ability to carry out normal day-to-day activities 24 Lancaster v TBWA Manchester UKEAT/0460/10 at [46] (Slade J presiding) 25 That it has lasted or is likely to last at least 12 months or the rest of the life of the person affected (Schedule 1 paragraph 2 of the EqA) 18 / 107[62]There is no need for the employer to be aware of the specific diagnosis of the condition that creates the impairment: Jennings v Barts and the London NHS Trust UKEAT/0056/12 at [88].[63]In Wilcox v Birmingham CAB Services Ltd 26 Underhill LJ, as he was at the time of the hearing of this claim, approved the comments of Lady Smith in Secretary of State for Work and Pensions v Alam27: an employer is under no duty under section 4A unless he knows (actually or constructively) both(1) that the employee is disabled and(2) that s/he is disadvantaged by the disability in the way set out at in s.4A(1). He continued, element (2) will not come into play if the employer does not know element (1). Whilst both those cases involved the Disability Discrimination Act the way paragraph 20(1) of Schedule 8 EqA is formulated leads to the conclusion that the analysis in Alam and Wilcox remains good law 28. DISCRIMINATION BECAUSE OF SOMETHING ARISING FROM DISABILITY[64]Section 15 EqA provides:- “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[65]Traditionally the most useful guidance to be found in one place on the proper approach to determining section 15 claims, was the decision of Simler P, as she then was, in Pnaiser 29 where she drew together the threads of the previous authorities 30. ‘Defences’ in the wider sense aside, there are three basic elements to a s. 15 complaint: 65.1. a disability 65.2. something arising in consequence of the complainant’s disability and 65.3. unfavourable treatment[66]As to the unfavourable treatment the tribunal must ask itself whether the complainant was treated unfavourably in the respects relied on and if so by whom. No question of comparison arises 31. 26 [2011] UKEAT/0293/10 at [37] 27 [2010] IRLR 283 (EAT) 28 See also paragraphs 6.19-6.22 of the Code 29 Pnaiser v NHS England & Another [2016] IRLR 170 at [31 (a)-(i)] 30 including IPC Media Ltd v Millar [2013] IRLR 707, Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2015] UKEAT 0397/14, [2016] ICR 305 per Langstaff P and Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893 31 Pnaiser [31(a)], Griffiths/25 19 / 107[67]The three elements require an investigation of two distinct links in the chain: 67.1. did A treat B unfavourably because of an (identified) something? and 67.2. did that something arise in consequence of B’s disability? 32[68]It does not matter precisely in which order these questions are addressed 33. That will depend on the facts 34.[69]The first ‘causative’ issue requires the Tribunal to determine is what caused the treatment complained of, or what was the reason for it. That involves an examination of the alleged discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s. 15 case.[70]The focus in a claim under s.15 needs to be on the reasons for the treatment itself and it is not enough for a claimant to argue that “but for” their disability they would not have been put in a situation that led to unfavourable treatment 35:- “55. Both s.13 and s. 15 use the same phrase “because of”. One requires A to have treated B less favourably than a comparator would have been treated because of a protected characteristic (s.13), the other to have treated him unfavourably because of something arising in consequence of a disability (s.15). One difference between the sections is that s 13 explicitly involves a comparison between how the Claimant and other persons without the protected characteristic are treated – “less favourable treatment” – whereas s 15 refers only to “unfavourable treatment”. But both sections require the ET to ascertain whether the treatment (whether less favourable or unfavourable) was because of the protected characteristic and, as such, require a tribunal to look at the thought processes of the decision-maker(s) concerned”. 36[71]The ‘something’ that gives rise to the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. This is not a binary question; was the treatment done because of his/her disability or because of some other reason. Both reasons might be in play 37. Again, as in direct discrimination motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment 38.[72]The second link requires the question of “in consequence of’ the disability to be considered (rather than because of) 39. The respondent is not required to know of the link or the something. In any event it has a defence under s.15(2) EqA. This is a looser connection such that more than one link in the relevant chain of consequences of the disability may require consideration. 32 [Sheikholeslami/62 & Grosset/36] 33 Weerasinghe 34 Pnaiser [31(i)] 35 Robinson v Department for Work and Pensions [2020] EWCA Civ 859 36 In so doing the CA approved the comments of Underhill LJ in Dunn v Secretary of State for Justice [2019] IRLR 298. 37 Sheikholeslami [62, 66]; Grosset [37]; Pnaiser [31(b)] 38 Nagarajan (see above) 39 Pnaiser [31(g)] City of York Council v Grosset [2018] IRLR 746 (CA) [38] 20 / 107[73]Whether something can properly be said to arise in consequence of disability is an objective question to be robustly assessed in each case by the Tribunal in light of the evidence. 40 The more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact 41.[74]The EHRC Code provides:- “5.9. The consequences of a disability include anything which is the result, effect or outcome of a disabled person's disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet. Example: A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker's disability, namely her loss of temper. There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker. …”[75]If a claimant shows the other elements of s.15 are satisfied there are two “defences” to a s.15 claim, knowledge and “justification”. Knowledge.[76]The language of s. 15(2) makes clear that the knowledge required is of the disability only. The EHRC code says this “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making inquiries about disability, employers should consider issues 40 Sheikholeslami [62, 66]; Grosset [38] 41 Pnaiser [31(e)] 21 / 107 of dignity and privacy and ensure that personal information is dealt with confidentially. Example: A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened. The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that that these were connected to a disability. It is likely to be reasonable to expect the employer to explore with the worker the reason for these changes and whether the difficulties are because of something arising in consequence of a disability. … When can an employer be assumed to know about disability? 5.17 If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability. 5.18 Therefore, where information about disabled people may come through different channels, employers need to ensure that there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act. Example: An occupational health (OH) adviser is engaged by a large employer to provide them with information about their workers’ health. The OH adviser becomes aware of a worker’s disability that is relevant to his work, and the worker consents to this information being disclosed to the employer. However, the OH adviser does not pass that information on to Human Resources or to the worker’s line manager. As the OH adviser is acting as the employer’s agent, it is not a defence for the employer to claim that they did not know about the worker’s disability. This is because the information gained by the adviser on the employer’s behalf is attributed to the employer.” 22 / 107 Justification[77]In contrast to indirect discrimination in s.15 complaints a respondent has to justify the unfavourable treatment rather than the PCP. The relevant legal principles can be summarised thus 42: “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways [2005] IRLR 863 at [31]. (2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end’ (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’: see Rainey v Greater Glasgow Health Board (HL) [1987] ICR 129 per Lord Keith of Kinkel at pp 142-143. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.”[78]Necessary means no more than necessary to achieve the legitimate aim (EHRC Code paragraph 4.31).[79]Whilst it is for the alleged perpetrator to justify the unfavourable treatment the authorities make clear that the alleged perpetrator is not required to provide evidence of justification; Tribunals are expected to use their common sense, reasoned and rational judgment; the Tribunal is required to make its own objective assessment. What may not be argued in support are subjective impressions or stereotyped assumptions 43. Thus, in Ministry of Justice v O’Brien [2013] ICR 499 following a reference to the European Court the SC adopted the ECJ’s guidance which is encapsulated in the summary of AG Kokott:- “62. The unequal treatment at issue must therefore be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the 42 MacCulloch v Imperial Chemical Industries plc [2008] ICR 1334 EAT [10] 43 see Elias J in Seldon v Clarkson Wright and Jakes [2009] IRLR 267 EAT at [73] affirmed by the Court of Appeal and Supreme Court and in Homer [2009] IRLR 601 EAT per Elias (now LJ) at [48] and also paragraph 4.26 of the Code. 23 / 107 basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued ...” 44[80]Thus, the more serious the disparate adverse impact, the more cogent must be the justification for it 45.[81]Unlike unfair dismissal there is no margin of discretion or 'range of reasonable response' test here allowing a significant latitude of judgment for the employer. The test under section 15(1)(b) EqA is an objective one, and the Tribunal must make its own assessment 46. That being so it is no bar to the act being justified if the alleged perpetrator had not turned its mind to the question of proportionality at the time and thus matters that have come to light after the event can be relied upon 47.[82]Where the unfavourable treatment is dismissal, the test of reasonableness applied in unfair dismissal cases and the proportionality assessment under s.15 will generally lead to the same result 48 but that will not always be so. A dismissal found to fall within the range of reasonable responses will not inevitably be found to be proportionate for s.15 EqA. HARASSMENT[83]Harassment is prohibited by s.40 EqA. It is defined in s. 26 EqA: “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). 44 see Del Cerro Alonso (Free movement of persons) [2007] EUECJ C-307/05, [2008] ICR 145 para 58, and Angé Serrano v European Parliament (Case C-496/08P) [2010] ECR I-1793, para 44. Albeit that is essentially a restatement of R. (Elias) v Secretary of State of Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 where Mummery LJ gave the following guidance on what was required :- “[151] ... the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” Which in turn is a repeat of his view in Hardy & Hansons plc v Lax [2005] IRLR 726 CA at [31 & 32], a view that was endorsed by Lady Hale in Homer at [20- 23]. 45 Dutton 9(b) MacCulloch [10(3)] Hardys per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60 46 see Hardys [31-34], and Homer [20] and [24]-[26] per Baroness Hale of Richmond JSC, with whom the other members of the Court agreed. Grosset [54] MacCulloch/11 47 Cadman v Health and Safety Executive [2004] IRLR 971 48 O’Brien v Bolton St Catherine’s Academy 2017 ICR 737 (CA) 24 / 107(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B;? (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are — age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.”[84]The words ”violating dignity” and “intimidating, hostile, degrading, humiliating, offensive” are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment and Tribunals must not cheapen the significance of these words 49. Thus:- “Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” 50[85]That gives rise to the three questions Dhaliwal 51 posed. As the Court of Appeal stated in Pemberton v Inwood 52 they need to be adapted to reflect the changes to the statutory regime following the enactment of the EqA. Two points still hold:- 49 Elias LJ in Grant v HM Land Registry [2011] IRLR 748 CA at [47] 50 Richmond Pharmacology v Dhaliwal [2009] UKEAT 0458/08, [2009] IRLR 336 at [22] 51 Dhaliwal 52 Pemberton v Inwood [2018] IRLR 542, [2018] EWCA Civ 564 per Underhill LJ 25 / 107 85.1. If the claimant does not perceive his/her dignity to have been violated, or an adverse environment 53 created, then the conduct should not be found to have had that effect. 85.2. If it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.[86]The words “related to” in the section have a broad meaning. The conduct complained of does not have to be “because of” the protected characteristic and will also include someone who is wrongly perceived as having a protected characteristic when in fact they do not 54. Timing[87]Section 123 EqA provides so far as is relevant:- “(1) … Proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[88]An act “occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory” 55.[89]Those time limits are extended by the statutory provisions concerning early conciliation. 53 This is the shorthand adopted in Dhaliwal for the cornucopia of epithets deployed in the statute. Although it is a convenient shorthand, it is important not to lose sight of the force of the particular adjectives used: see (49). 54 as highlighted by Laws and Sedley LJJ in English v Thomas Sanderson Ltd [2009] IRLR 206 CA 55 Mensah v Royal College of Midwives EAT/124/94 at [11G-H]) and Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 26 / 107 Chronology
BACKGROUND
[90]On 22 October 2003 Mr Seymour began employment with what is now Vantiva, initially in the position of “VNA Operative” [172-173]. In October 2015 he was promoted to the role of Team Leader [174] which changed to Distribution Team Leader in June 2019 [176].[91]At the time of the matters that concern us Vantiva 91.1. operated from two sites:- 91.1.1. Rugby, where Mr Seymour worked and 91.1.2. Barsan, a rented site that was a base for a distribution company used by Vantiva and where according to Mr Beaton 4 or 5 Vantiva staff were based. Vantiva’s operations there ended in 2024, 91.2. employed two Operations Managers at the Rugby site; Mr Price managed the “outbound” and “transport” activities at the site and Mr Jarman was responsible for “inbound” and “return”. Both reported into Mr Beaton.[92]Mr Jarman has worked for the Respondent since August 2015 and following Mr Seymour’s promotion in October 2015, Mr Seymour reported to him.[93]Mr Seymour told us [DS/2] that during 2019 he started to feel uncomfortable going to work. He put that down to receiving conflicting instructions from Mr Jarman, and sometimes Dave Willis, a controller. Mr Seymour gave the example of being told to prioritise an order and then being told to stop and that he shouldn’t have done that. He said that he felt that Mr Jarman liked undermining him and “I didn't feel I could discuss his behaviours towards me or tell him they were causing me stress due to his attitude to other members of staff and their issues.”. He did not expand on what the attitudes that he referred to were. Ms Chater told us that Mr Seymour often spoke about how he felt uncomfortable with Mr Jarman giving him conflicting orders. She did not tell us when those discussions took place but expanded by saying that Mr Seymour also told her that he thought that Vantiva were trying to get rid of him but he didn't know why.[94]Mr Seymour also complained how a colleague was furloughed for 9 months during COVID leaving him to work alone on his shift whereas the Team Leaders on the opposing shift were still working together. He told us he felt stressed with the amount of work because the role required two Team Leaders, particularly at that busy time. He also complained that he was only furloughed for 3 weeks and forced to take another 3 weeks as holiday with little discussion. He stated he felt bullied and stressed from having to cope alone with a heavy workload and despite Mr Jarman assuring him that someone else would help him out, he only received limited assistance. He stated that he felt that Mr Jarman “was doing it to make me leave as he did not want me there anymore”. Ms Chater told us that Mr Seymour would voice to her how he couldn't trust anyone at Vantiva to voice his growing concerns to but again did not date this. 27 / 107 POLICIES[95]Mr Seymour’s offer letter setting out the terms of his employment was dated 26 September 2003 [172]. It stated amongst other matters that:- “This letter of appointment together with the Company's Handbook entitled “Terms and Conditions of Employment’’ comprise your contract and written particulars of employment. The Company reserves the right to make reasonable changes to your contract of employment from time to time and you will be given not less than one months’ written notice of any such changes. A copy of the Company’s current handbook is enclosed.“[96]Several variation documents were before us [174 onwards]. They culminated in a document titled “Principle (sic.) statement of terms and conditions of employment” dated September 2022 (“T&Cs”) and were stated to be version 12 [177]. That provided amongst other matters:- “PLACE OF EMPLOYMENT [179] Your normal place of employment will be as stated in your Letter of Appointment. However, your place of work may be changed, whether on a permanent or temporary basis, as reasonably required by the Company. On such occasions the Company will consult you accordingly prior to implementing a change to your place of work. … YOUR VOICE CONSULTATION FORUM (YVF) [191] The objectives and functions of the YVF are to provide a means of communication and consultation on matters of mutual interest including business performance, employee satisfaction questionnaires and social aspects and to consider any matters affecting employees within the scope of the YVF and to make agreements upon them. This forum consists of employee representatives and employer representatives. Representatives must have a minimum of one year’s service and have no current disciplinary warnings recorded at written level or above. The YVF covers all employees of the Company with the exception of the Managers and Corporate Functions.”[97]In addition we had before us various policies:- 97.1. Sickness Policy (Effective 1 November 2017, sent to Mr Seymour on 1 November 2023) [143-148] 28 / 107 97.2. Income Protection Scheme - Information for Employee - Provider MetLife (Undated) [149-150] 97.3. Long Term Absence Policy (January 2023 – Version 19) [151 – 154] 97.4. Sickness - Absence Policy (Undated) [155-162] 97.5. Grievance Policy (Undated) [163-171][98]We address starting at (25) the instructions the Tribunal gave with regards to the disclosure of Vantiva’s policies.[99]Vantiva’s sickness policy effective 1 November 2017 [145 - 146] provides:- “5. Medical Advice … The Company may, at any time in operating this policy, require you to consent to a medical examination from an occupational health adviser or a doctor nominated by us, at the Company’s expense. … The Company reserves the right to withhold or suspend sick pay under its contractual sick pay scheme if you refuse to attend an appointment with an occupational health adviser or a doctor at the reasonable request of the Company. …”[100]Vantiva’s Long Term Absence Policy set a guide when the various meetings under it should be held. It made clear matters would be considered on a case by case basis and that further informal meetings might be required during the process:- “• Week 4-8 of absence - A minimum of 1 Welfare meeting request of Occupational Health Report.• Week 12-16 of absence - Stage 1 Long term absence meeting and• Week 16-24 of absence - Stage 2 Long term absence meeting following receipt of Occupational Health report for discussion at this meeting.• Week 28 of absence - Stage 3 Long term absence meeting (final)”[101]As has been noted above Vantiva also provided for its staff an Income Protection Scheme that was provided by “MetLife” (see (174 & 383)). The Long Term Absence Policy at various points indicated the discussions it provided for might include a MetLife referral.[102]Miss Waters told us [SW/7] as a result of the rebranding we refer to at (2) above a review of policies was undertaken during which inconsistencies as to the approach to managing sickness absence were identified. As a result, a working party was set up to revise the policies. The development of the new long term absence policy was not concluded until January 2023. She told us employees were given access sometime in January 2023 via Vantiva’s internal system, Okta. It transpires Mr Seymour did not have access to that outside of work and so was not sent the revised policy until 25 January 2023 (see (288)). 29 / 107[103]We address an issue concerning if this was a contractual change and its effect starting at (289) below. THE EVENTS LEADING TO THE MATTERS THAT CONCERN US[104]Sometime in October 2022 Miss Waters told us that Vantiva received a complaint from an agency worker regarding Mr Seymour [SW/14]. The agency worker stated that she had decided to ‘resign’ [REDACTED].[105]An investigation into the complaint was commenced by Daniel Johnson, Operations Support Manager and on Tuesday 18 October 2022 Mr Johnson conducted an investigation meeting with Mr Seymour. It was minuted by Miss Waters who also provided HR support [192 - 195]. Mr Seymour was told of the detail of the complaint. The minutes indicate he provided a reply, acknowledging he had touched the worker on the shoulder and apologised but did not feel he had done anything wrong.[106]Mr Seymour did not address the incident in his witness statement. Ms Chater told us [SC/3] that Mr Seymour had told her that two Portuguese employees who were in a relationship, had been dismissed by him and another team leader with regard to taking breaks. As a result, she told us a number of their friends challenged that decision with Mr Seymour in the days before the investigation meeting. We treated this as an allegation that the complaint was made in reprisal for the dismissal.[107]Miss Waters told us further investigation meetings were held over the next few days, during which two further individuals raised concerns regarding inappropriate comments made by Mr Seymour. Mr Johnson intended to take these up with Mr Seymour on 19 October 2022but before Mr Johnson could speak to him Mr Seymour’s shift had ended, and he did not return to work thereafter.[108]Miss Waters also stated [SW/18] that on 20 and 21 October (Mr Seymour believed this was early morning of 21 October) Mr Seymour contacted Mr Fouad Hanna, the night shift Team Leader to say that he had a stomach bug and he would not be in work. Mr Hanna passed that on to Miss Waters.[109]On day 8 of the trial Ms Chater suggested to Mrs Harrison that the investigation could have been expedited and the distress and upset caused to Mr Seymour reduced by Vantiva sending him a set of questions addressing any further topics it needed to raise with him. She referenced Vantiva doing this at a later point in relation to his sickness absence. We address this at (421) below.[110]On 24 October 2024 a MED3 Sick Note dated the same day [333] was submitted by Mr Seymour stating he was not fit to work until 7 November 2022. The cause was stated as ‘stress at work’ [333 - 343]. No adjustments were identified. THE EVENTS OF 25 OCTOBER 2022[111]Miss Waters told us [SW/19] that having received the sick note she was concerned that Mr Seymour’s absence could have been caused by the investigation given he did not have any previous history of work-related stress. Having discussed matters with Mrs Harrison she decided to hold a welfare call with Mr Seymour to see if that was so and to see if there was anything Vantiva could do to help. She told us that she did not want him to be panicking about the investigation, to reassure him that Vantiva just needed to ask him some fact-finding questions and that nothing had been decided. 30 / 107 She told us she felt the allegations did not seem serious enough to warrant a finding of gross misconduct, as a result it did not appear to her that there was any danger of him losing his job and so hoped to convince him to come back to work so the investigation could be concluded, as she felt this would help to alleviate his stress.[112]She tried to call Mr Seymour at approximately 10:25am on the morning of 25 October 2022. Her account was as follows. Ms Chater, who she subsequently learned was Mr Seymour’s partner, answered his phone. Miss Waters asked to speak to Mr Seymour. Ms Chater said no. Having checked she had dialled correctly, Miss Waters alleges that Ms Chater said that Miss Waters would not be speaking to him. Miss Waters described Ms Chater's tone from the beginning of the conversation as rude and confrontational. In a note she wrote to Mrs Harrison a few minutes later she described Ms Chater as referring to the "trumped up allegation" against him and that he would "not respond until there was an outcome" [499]. She told us Ms Chater ended the call by hanging up. We will return to how Ms Chater viewed the call in a moment.[113]Miss Waters described her own tone throughout the conversation as measured but firm and she tried to explain to Ms Chater why she was unable to discuss Mr Seymour’s absence with her. Miss Waters explained to us that she told Ms Chater that as she was not named in Vantiva’s records for Mr Seymour and she could not speak to Ms Chater without Mr Seymour’s permission. She told us that at one point she said, "please send Darren our best”.[114]Miss Waters told us after the call she was extremely taken aback by the way Ms Chater had spoken to her and her response to her trying to hold a welfare call with Mr Seymour. As a result, she noted what had happened in an email to Mrs Harrison [499] that she sent approximately 10 minutes after the call. She told us she also spoke to Mrs Harrison later that day about what had happened.[115]Later that day Ms Chater, called the Respondent and spoke to Mrs Harrison. Mrs Harrison told us that Mr Beaton walked into her office just as she answered the phone and stayed for the duration of the call. Mrs Harrison told us that despite what Miss Waters had told her about her call with Ms Chater, she was caught off guard by what Ms Chater said and how she said it. She told us that Ms Chater told her that Vantiva was not to speak to Mr Seymour, that she did not want Vantiva to investigate the conduct allegations outlined above and that Vantiva was bullying and harassing Mr Seymour. Mrs Harrison said that whilst Ms Chater did most of the talking on the call, her own responses were firm but calm and she had no reason to be rude or condescending to Ms Chater nor was it in her nature to be so. During the call she told us she found Ms Chater to be abrupt, strong-willed and bossy. She did not expect that from a complete stranger and had never come across someone completely unknown to her, being so confrontational. She made a note of the call with Ms Chater [500 – 501] but not until the beginning of November 2022[116]Given they had not been able to speak to Mr Seymour Mrs Harrison emailed Mr Seymour later that day [199-200]. The email set out what had happened, explained why Miss Waters and Mrs Harrison wanted to speak to him and that Vantiva would need his permission to speak to Ms Chater. She went on to explain that in the light of how rude and confrontational Ms Chater had been to both herself and Miss Waters anything Ms Chater wanted to say on Mr Seymour’s behalf would need to be in in writing. Towards the end of that email she stated: 31 / 107 “In the likelihood that your absence continues, the company would like to support and facilitate your return to work by seeking further guidance from our Occupational Health provider. They will be best placed to suggest any reasonable adjustments which may need to be made at this stage.” [200][117]Mr Seymour described those events thus:- “9. On Tuesday 25th October 2022, I don’t know what time, Technicolor rang my phone, I just gave it to Shaz as I could not cope with talking to them. Shaz spoke to them and they weren't very nice to her. She told me she couldn't believe how rude they were to her and they refused to believe she was my partner. She told them they couldn't speak to me as I wasn't in a fit state. Page 196 – 200 of the bundle. 10. I remember Shaz helping me to write everything down and I remember telling her to deal with Technicolor because I couldn't.”[118]Ms Chater suggested that the delay in Mrs Harrison making a note of their conversation on 25 October meant she and Ms Waters had had ample time to collude and the allegation that Ms Chater had been rude was a fabrication to discredit her and to give Mrs Harrison grounds to refuse to allow Ms Chater to be Mr Seymour’s advocate.[119]Despite the delay in that note being made we find that that reasoning is misconceived. Mr Seymour did not seek that Ms Chater advocate on his behalf until Sunday 30 October 2022 [198], Miss Waters made her note of 25 October almost immediately and it was not put that she had amended her note. Further, we accept the explanation given by Mrs Harrison that the trigger for her making the note when she did was the grievance Mr Seymour lodged on Wednesday, 2 November 2022 [385].[120]In Mrs Harrison’s note of her call with Ms Chater on 25 October [500] she records Ms Chater as saying 120.1. the call from Miss Walters was “cackhanded” (something Ms Chater did not deny before us), 120.2. “Well this is how it is. At the moment, you will be unable to contact him. You are not entitled to speak to Darren, I am taking all of his calls, I have his phone. If you would like to book an appointment to see him in his home, you may do so, however he is currently residing in my home.”, 120.3. “I am not willing to speak to Sam, nor is she welcome in my home. Therefore you will be taking over the investigation.” and 120.4. “Understand this. Darren will not talk to Miss Walters, he will only talk to you. Vis-a-vis, you will be doing the investigation.” amongst other matters. As to the later points Mrs Harrison told us she replied “I am not involved in the investigation, nor will I be.” and “Please don't tell me how to do my job.” 32 / 107[121]Mrs Harrison characterised Ms Chater during the call thus:- “10. … abrupt, strong-willed and bossy. For example, when she told me that I would be the one who would do the investigation, not Sam (page 501).”[122]We find that Mrs Harrison’s note was consistent with her summary at paragraph 10 of her witness statement. Ms Chater did not dispute, similar comments she made at other points and again before us. Accordingly, despite the delay of 8 days or so in her making the note, we find it was an accurate portrayal of her perception of the call. By way of example of the second of those points when Ms Chater was being cross examined on day 6 having failed to clarify a point about the source of a piece of advice (a nurse or GP) Mr Rhodes stated “I'm going to ask that question again” Ms Chater responded “You can ask as much as you like I’ve answered it - you’re not going to get a different answer” and did not answer the question. HARASSMENT - 7.1.1 JACQUELINE HARRISON (OF R’S HR) REQUESTING C ATTEND AN OH APPOINTMENT BY EMAIL ON 25 OCTOBER 2022 [199-200][123]Despite the way the allegation is put Mr Seymour in cross examination accepted that as he viewed things now Mrs Harrison’s email of 25 October 2022 was not a request to attend an OH appointment. Whilst he accepted that, he made plain that he believed that at the time and he was “not in his right mind” at the time. His accounted is supported by what Ms Chater told us in cross examination “He wasn’t making sense a lot of the time”.[124]Whilst we accept that that it was Mr Seymour’s view at the time we find having reviewed the content of the email that at best what Mrs Harrison was doing was placing him on notice that if his absence continued Vantiva would want him to attend OH but that she was not requesting that at that point (we accept she did so subsequently did so via an email dated 1 November 2022 [196] (see (136) below).[125]We find that allegation did not did not occur as alleged by Mr Seymour. Further in no sense does that email meet the threshold for harassment and that complaint must fail. EVENTS SUBSEQUENT TO 25 OCTOBER 2022[126]Whilst Mr Seymour does not address this in his witness statements at all, Ms Chater told us in her main witness statement :- “8. I assisted Darren to raise a Grievance on 2nd November 2022, this was in response to the inaccurate gossip travelling around Darren's workplace and being gossiped about by his colleagues calling him a pervert and saying that he had assaulted a female colleague, this was brought to Darren's attention by a whistleblower who wishes to remain anonymous as she still works for the company and fears reprisals from the management.”[127]The reference to the whistleblower is explained in the impact statement she gave on Mr Seymour’s behalf:- “8. Around 27 October 2022 Mr Seymour received a telephone call from a colleague ‘who informed him his investigation meeting into the 33 / 107 allegation of touching the girls shoulder was all over the warehouse, everyone knew and he had been labelled a “pervert” for touching her.’ ”[128]Ms Chater did not say if she took part in the call or if she heard that from Mr Seymour.[129]Ms Chater appears to suggest that Mr Seymour came to the view that this was a “leak” from management. That “leak” was the subject of Mr Seymour’s subsequent grievance (see (147)) in which Mr Seymour stated:- “… a reliable source has now disclosed to me that the details of my disciplinary are now common knowledge within the warehouse. The persons known to be discussing this are as follows: KB (Team Leader) PF (Team Leader) JF (Bulk driver) PB (Goods In) NS (Bulk Driver)”.[130]Neither Ms Chater nor Mr Seymour relayed if they doubted or sought to check what they had been told in the telephone call, or considered if the source of the “leak” were the disaffected employees or friends of the disaffected employees who remained working for Vantiva (see (106) above regarding Ms Chater’s account of Mr Seymour being challenged by friends of the disaffected employees prior to 18 October).[131]Only a week or so later at the minutes of the 8 November 2022 grievance meeting Mr Seymour made plain that he considered the disaffected employees as the potential source of the leak (see (164)). We find that was his belief on 8 November 2022.[132]Despite that we find that Mr Seymour’s subsequent concern about attending OH, MetLife and/or disclosing his medical records to Vantiva stems from that leak and appeared to be based on not being able to trust Vantiva not to leak personal/medical information. We find based on what he and Ms Chater told us, that that stemmed from Mr Seymour’s poor mental health at the time (see for example (135)).[133]We address a further alleged “leak” almost exactly a year later concerning Mr Seymour’s dismissal at (458) below.[134]On 30 October 2022 Mr Seymour replied via email to Mrs Harrison [198 - 199]. It was signed off “Darren Seymour (Please accept this as electronically signed)” (in contrast to later emails that were signed off “Sharon Chater ON BEHALF OF DARREN SEYMOUR”).[135]In the email of 30 October Mr Seymour complained about the manner of Mrs Harrison and Miss Waters, authorised Ms Chater to speak on his behalf, sought a copy of Vantiva’s company handbook, informed Mrs Harrison that stress at work had caused his mental health to be precarious, and that his mental health was having a serious 34 / 107 effect on his life. Mr Seymour requested that Vantiva stop its “constant harassment by telephone”. We address other questions he raised in relation to the next issue:- HARASSMENT - 7.1.2 JACQUELINE HARRISON REQUESTING C ATTEND AN OH APPOINTMENT BY EMAIL ON 1 NOVEMBER 2022 [196];[136]Vantiva accepts that on 1 November 2022 Mrs Harrison wrote to Mr Seymour responding to the points he raised in his email of 30 October. In relation to one of the issues he said this:- “• Firstly, due to stress at work, I had to attend my GP surgery where I was advised to have complete and total rest from anything work related. My partner, Sharon, then delivered my sickness certificate to the gate house, as due to my state of mind I was unable to drive. My partner subsequently took your many calls on my behalf, each time explaining who she was and that she acted on my behalf as at that time I was unable to deal with matter myself. As per your email, She found you to be both obstructive and condescending in your manner and therefore felt that my mental health status was not of any importance to you, even after she explained she was acting on the GP's advice when I could not speak for myself.”[137]Mrs Harrison’s reply was endorsed in purple text in the email chain:- “Darren, I hope you are making a speedy recovery. The purpose of Sam's call to you was solely to check on your welfare and to understand if there was anything which the Company could do to support you whilst you are absent. As we did not at this time have the appropriate permission from yourself to speak to your partner, only her word, it made discussing your health rather challenging. I am sure you can understand, as we have explained previously, we cannot just disclose information to somebody who we do not have express permission to speak to. The manner in which your partner responded to this was unhelpful.”[138]In response to a question from Mr Seymour:- “…. As per the above I need it clarifying as to how many individuals and how many incidents ? as during my initial meeting with Dan Johnson and Sam Walters I was advised it was one individual and four alleged incidents ?”[139]Mrs Harrison responded:- “As explained to you, Dan and Sam are undergoing an investigation into your alleged conduct at work. Whilst investigating, I understand that further allegations were raised and therefore the investigation is still ongoing. Dan explained in your initial meeting that this was the "fact-finding" stage of the process and therefore he may need to speak to you again should there be the need for further clarification or if new information came to light. For this reason, it is important that Dan speaks to you, when you are of sound mind, to 35 / 107 understand from your point of view what happened. It is important to stress that there is no assumption of guilt here, Dan and Sam are purely acting on the allegations raised and investigating accordingly.”[140]The Mr Seymour’s continued:- “• Since you have refused to understand or take on board the precarious nature of my mental health which has been caused by stress at work, I will clarify that for you. It is of such a serious nature that my normal patterns of life are severely disrupted to the point where I do not want to speak to anyone, cannot sleep, cannot eat and I am in a state of constant anxiety and depression. I am due back to the GP at the end of next week, whereupon further help and medication will be discussed.”[141]Mrs Harrison said this:- “Darren, once again I am sorry to hear how unwell you are feeling, and I truly hope you are able to get the support needed. I sent you across our Employee Assistance Programme details. In case you are not aware, they offer 6 sessions of counselling free of charge and I believe that the waiting list here would be significantly less than via the NHS. It is a completely confidential service, we would not be aware if you called them, and we would not be made aware of anything that you discuss with them or them with you. In view of the fact that you are suffering from stress, it would be beneficial for you to have an appointment with the Company’s Occupational Health provider, in line with our contractual company sick pay, so we can also understand what further support you require. I have attached more information on this and the corresponding consent form. Please sign and return this to me by Friday 4th November 2022.”[142]Whilst Mrs Harrison referred to Vantiva’s company sick pay policy she did not say if Mr Seymour refused to attend OH company sick pay could be (and would be) withdrawn. She also explained amongst other matters that Miss Water’s call of 25 October 2022 was to solely check on his welfare and to understand if there was anything Vantiva could do to support him whilst he was absent. She continued:- “As we did not at this time have the appropriate permission from yourself to speak to your partner, only her word, it made discussing your health rather challenging. I am sure you can understand, as we have explained previously, we cannot just disclose information to somebody who we do not have express permission to speak to. The manner in which your partner responded to this was unhelpful”.[143]By this time Mr Seymour had given written permission for Vantiva to speak to Ms Chater so Mrs Harrison went on to say that Vantiva would not be taking up that option 36 / 107 because Mr Seymour was Vantiva’s “employee, and therefore it is appropriate to communicate with you directly”.[144]Mr Seymour accepted during cross examination that 144.1. Mrs Harrison’s email was not unreasonable and 144.2. viewed objectively it was not reasonable that the suggestion he attend OH had the proscribed effects set out in s. 26(1)((b) EqA (see (83).[145]Given the contents of her email, the sources of help she pointed to and the reassurance she tried to give (see (136)) we find Mrs Harrison was genuinely concerned about Mr Seymour. In the light of that and the context of his absence we find that the suggestion he attend OH was something that a reasonable respondent was duty bound to consider, propose and if consented to by an employee, undertake. We find that was necessary to understand the reasons for his absence the prognosis, likelihood of return (and timescale for it (if any)) and what adjustments (if any) should be made to facilitate that. The purpose of that request was not to harass Mr Seymour and viewed objectively cannot be viewed as such.[146]For those reasons that complaint also fails. FIRST GRIEVANCE OF 2 NOVEMBER 2022 [385 - 386][147]This does not form one of complaints before us. We do not intend to dwell on it but need to address this as it related to Vantiva’s “HR team and Management” and sets out how Mr Seymour felt about things at that point. Due to whom it related, it was raised direct to Mr Beaton. It included complaints that Mr Seymour’s “… Data Protection has been breached by HR/Management. I am informed that details of my disciplinary have been leaked at various levels throughout Vantiva. … Due to my personal data being shared amongst the warehouse staff and the details of my disciplinary being common knowledge I am now of the belief that upon my return to work there will be zero respect or trust in me as a team leader making it untenable and unbearable for me to execute my duties. Furthermore I believe there have been more allegations laid against me which given the common knowledge of my disciplinary means that particular demographics within Vantiva are free to collude and fabricate anything against me. … I should also like to say that they were rude and dismissive to my partner Sharon, who was acting on my behalf and fully to the GP's recommendations that I not be put under further stress from the company whether that be via telephone or emails. 37 / 107 … At present I am struggling to converse with my GP or anyone for that matter, so I do not wish to pursue speaking to your OT [Mr Seymour confirmed to us this was a reference to Occupational Therapist i.e. Occupational Health] at the current time. … I have been forced, due to the serious nature of the above to seek legal advice with regards to my data protection leak under GDPR (The Data Protection Act 2018). Regards Darren Seymour, Team Leader. (Please accept this as electronically signed)”[148]In addition to addressing the leak of personal information and the HR team being rude and dismissive to Ms Chater, in his subsequent outcome Mr Beaton dealt with two further points, namely Mr Seymour:- 148.1. believing he was being victimised due to his involvement in the dismissal of agency workers who were acquaintances of the worker who had raised a grievance against him, and 148.2. having concerns regarding his return to work, the level of trust and respect his colleagues would have for him given the nature of the allegations raised and the allegation of a breach of confidentiality.[149]On 3 November 2022 Mr Beaton invited Mr Seymour to a grievance meeting to be held on Monday 7 November and attached Vantiva’s grievance policy [387]. Mr Seymour responded on 4 November 2022 stating he could not attend as he had a GP appointment. He also sought the grievance meeting to take place in a neutral location [384]. Again, Mr Seymour’s response was signed “(Darren Seymour - (Please accept this as electronically signed))”.[150]Vantiva’s grievance policy [168] states “You have the right to be accompanied at the hearing by a fellow Vantiva employee, a Your Voice representative, a trade union official or a trade union representative (who has been certified by their union as being competent to accompany a worker) if you so wish. Your companion will, if you wish:• set out your case• respond on your behalf to any comments or points made at the meeting• talk with you during the hearing• take notes• sum up your case at the end of the hearing 38 / 107 However, they will not be able to answer questions on your behalf.” [original emphasis][151]Mr Seymour in cross examination was asked about “Your Voice”. We set out what the T&Cs say about it at (96). It was put to him that it was an internal forum whose members were ACAS trained. He accepted he was aware of it, but not of its accreditation, stated he thought they were advocates for Vantiva. He also stated he had been asked to join it himself.[152]Mr Beaton responded later that day (4 November) confirming that he had booked a neutral location for the meeting and that Mr Seymour could be accompanied by Ms Chater. Mr Beaton told us [FB/9] the policy was adjusted to allow Ms Chater to accompany Mr Seymour despite his belief at the time that she had been rude to Mrs Harrison a couple of weeks previously. 8 NOVEMBER 2022 GRIEVANCE MEETING[153]On 8 November 2022 Mr Seymour attended the grievance meeting accompanied by Ms Chater. We find for the reasons given by Mr Seymour stated in the first claim “The Grievance discussion meeting was arranged at Mercure Hotel Daventry on 8th November 2022 as I was not comfortable with going into Vantiva Rugby.” [15]. As the grievance related to members of Vantiva’s HR team, Ms Kelly Clifton, a quality health safety and environmental controller, took the notes [201 – 208].[154]Before the meeting started Mr Beaton told us he met Mr Seymour and Ms Chater outside the venue, advised them that they were parked in a restricted area and that the car park was just round the corner, Ms Chater replied with “I am disabled - I will park wherever I like”. [FB/11]. Mr Beaton stated in the meeting that followed he found Ms Chater’s tone to be confrontational and unpleasant and at the start of the meeting, he told us Ms Chater threw a MED3 Sick Note across the table. He continued:- “11. …I asked Darren to let me know if at any stage he needed a break or adjournment, to which Ms Chater replied, ‘We will not ask to take a break, Darren’s GP is not happy with his mental health, Darren will just take a break as and when he feels he must’.”[155]The MED3 Sick note was dated 7 November 2022 and ran to 30 November 2022 [334]. It stated that the cause of the absence was “stress at work” but made no reference to adjustments that Mr Seymour may benefit from.[156]During her evidence Ms Chater told us she had recorded that exchange because “It was not nice to be confronted as soon as you got there. I was terrified. I was that scared and so I recorded it for my own protection”.[157]The recording was played. It was not of good quality. The transcript could not be agreed. The agreed sections are in black. The sections the claimant states were said in red and those the respondent states in blue. “FB Hi Hiya Darren, I’m not sure you can park there DS She You can 39 / 107 Francis Beaton ignored Darren… FB You might need to park at the back SC I’m disabled FB Sorry? (In a sarcastic, confrontational tone) Oh right, oh is it? Oh ok, that’s fine, well I hope it’s fine it’s not my hotel. SC I have a Blue Badge that’s clearly displayed so it will be fine Francis Beaton turned his back on us and marched into the hotel saying FB Yeah, well just stick your registration number in at the desk., um just put it down as a…. [cuts off]”[158]In contrast, in her witness statement Ms Chater told us [SC/8] “… I also felt sick to my stomach about the way I had been treated by Francis Beaton when I parked in a Disabled Space outside the hotel, I alighted from my car and stood there with my walking stick, waiting for Darren to get out of the car, Francis Beaton rushed out of the hotel shouting I could not park there! I pointed to my Blue Badge which was clearly displayed, and told him I could, he then turned on his heel and walked back into the hotel, I found his remark unjust and offensive, he did not apologise for his shouting at me…”[159]Given the first words she states Mr Beaton uttered in her witness statement were captured on the recording that does not explain why given the basis for making the recording was her fear, why she had started the recording before a word was said.[160]Mr Beaton stated [FB/11] that he started the meeting by introducing those present and explained the role of the companion, to which Ms Chater interrupted with “I am aware of this and do not need it explaining” [201].[161]Orally she also described Mr Beaton’s approach as “Having someone red faced shouting come at you. It was a high handed approach. We’re not children. We don’t need to ask to leave the room”.[162]That appears to be a reference to what in our experience as an industrial jury is common practice at the start of any meeting of this ilk for the chair of the meeting to introduce those present, explain the way the meeting would proceed, how long it was expected to take, how breaks would be dealt with and that no recordings would be permitted. It is so common that it was only addressed in passing in the notes. That context aside we find Ms Chater’s response was unnecessary and surprising given it is a basic courtesy to the others present to seek to excuse oneself if required. 40 / 107[163]Having clarified what the complaint related to, the minutes record that Mr Beaton sought to identify what Mr Seymour’s preferred outcome was and the interplay with the investigation:- “FB - Do you have in mind an expected outcome from the grievance, what do you want from this? - To give an example, other grievances have resulted in the person just wanting an apology. Please don’t worry if you don’t know at this stage DS - I don’t know right now. FB - I have noted that your fit note has signed you off work till the end of the month, the Investigation into the allegations made will not continue at the moment due to you not being in work, the grievance does take priority at this stage, we will conduct interviews with those named in this meeting, at some stage we will need to have another meeting with you, are you well enough for this to take place face to face or are you more comfortable with this being over teams? SC/DS - As long as this is not with JH then we are happy for any further meetings to be face to face. FB - To clarify it will be myself that will be hearing the grievance and conducting all interviews with KC as note taker, at the end if you are not happy with the outcome, you have the right to appeal and this will be with someone either of the same level of higher position than myself, there will be no involvement from the UK HR team. FB - To confirm, are you happy for me to maintain contact and reconvene for another meeting later? DS - Yes that’s ok FB - We will need time to now question the other staff involved, and determine if this was gossip or a breach from the meeting held and if an employee has broken the rules and spoken to other people SC – This is a serious matter and a clear breach of confidential data and the disciplinary pertained to this and not warehouse gossip. FB – To confirm your meeting was only an investigation and not a disciplinary hearing.”[164]Mr Beaton also states [FB/12] that towards the end of the meeting, he asked if there was anything else that Mr Seymour wanted to discuss and what he wanted as an outcome from his grievance. In that respect the minutes [206-208] record this exchange:- “FB - Do you have anything else to add? 41 / 107 DS - I have just one question; how will it be dealt with when I return to work and now being labelled a pervert? FB - I’m not fully aware of the details of the allegations made, all I can say is that in the past the company has had allegations reported of inappropriate behaviour, but that didn’t mean that it took place, there was one occurrence approx. 12 months ago and the investigation took place and no disciplinary action was taken, it turned out that the individual had the wrong perception, the person who had the allegation made against them is now back to work and nobody thinks any the worse of them. SC - Darren, was you aware of this particular investigation? DS - Yes if it’s the one I’m thinking off involving 3 Portuguese girls and a bulk driver around 18 months ago. FB - The outcome of that particular investigation led to no action and the person is still at work. FB - Is there anything else you would like to add? Darren if you are unable to talk it is ok for SC to do this on your behalf. SC - Darren now feels his position within the company is untenable and he has lost the respect of his colleagues, his good name has been besmirched by a group of a certain demographic seeking a vendetta because he questioned the timings of individuals break times. And returning to the workplace fills him with dread, his GP feels that he needs to be watched and is currently on 15mg of Mirtazapine (Anti-depressant drug) with the dosage under review. FB - Ok thank you, is there something specific you would like for an outcome of this grievance, you will not be held to anything you say. DS - I just don’t want to be there any more FB - Ok, anything else? SC - Speaking on Darren’s behalf, this is quite serious so all cards on the table; Darren’s state of mind is precarious, and he has struggled speaking with his GP, they have advised that he should not be left alone, we have discussed with our legal representative the situation and just want peace of mind, which we don’t think Vantiva can give us and that this will not just go away. Therefore, DS wants Redundancy under the Vantiva terms (19yrs service with 3 months’ notice period) We are confident that If the Data breach goes to court/tribunal we would win the case and this will be a cost to Vantiva, we are willing to agree a sum to settle this. 42 / 107 FB – To confirm you are asking for a redundancy deal as per the Vantiva terms and an addition settlement for the alleged data breach? SC – Yes that is correct, we are confident we would win, this is not a financial gain, this has destroyed DS and should be treated very seriously, DS does not gossip and this whole ordeal has been horrific FB - We will seek our own Legal advice. I would like to conclude with a general discussion if that is ok? DS - Yes FB - I would like to be absolutely clear that you are not undergoing a disciplinary in work. DJ and SW are investigating an allegation, therefore at this stage it is a grievance from an employee that is being investigated and these are not allegations from the company. We have a legal and moral obligation follow up any allegations made whether they are right, wrong, or indifferent, to listen to them and act upon them. Currently your grievance is our priority FB - I understand this is a stressful situation to be in, I have not had a personal experience, but I can imagine having your moral compass questioned is stressful. I have noted that your fit note supplied is basic and only states ‘stress at work’, have you any pre-existing mental health issues or been on medication before this, or is it this situation that has caused it? DS - No, nothing before, it is just this FB - Have you explained to your GP, are they aware of the root cause of your mental health issue? DS - He just knows it is a workplace issue SC - DS is finding it very difficult to talk to anyone, he has been what we call ‘locked down’, its clear that he has no previous sickness issues at work, only a period off with Covid. FB - I have not seen his HR file, but I am aware that there has been no previous disciplinaries against DS or ongoing issues regarding his sickness. With his good character and employment record this is all taken into consideration alongside the allegations. SC - DS has a telephone appointment booked for this week with a counsellor given the seriousness of his condition FB - Have you received any information about Vantiva health assured scheme? SC - Given his inability to communicate, we are already registered with the GP so will attend these appointments 43 / 107 FB - I will forward the details but please have a look. This is a service the company pays for and is confidential between you and them FB -You were offered an appointment with the Occupational Health therapist; was there a reason this was declined? DS - Just at the time I was not able to talk to anyone FB - Would you like to reconsider this? DS – I will have a look at it FB – Ok thank you, Occupational Health is there to facilitate the company making reasonable adjustments to enable you to return to work or at least participate in a discussion with the company, the therapist we use is a trained medical professional. The downside of declining it is the company does have the right to stop any sick pay whilst you are off work SC – DS has issues communicating with his GP and the mental health team, he finds the conversations difficult, I had to engage a male colleague as he now feels uncomfortable speaking with women, and given your OH therapist is a woman we will consider this over the next few weeks but not imminently FB - Please consider this, The OH therapist can talk with your GP and help speed up any appointments if needed DS – Thank you, I will speak with the mental health team on Friday first. FB – I have no other items to discuss at this stage I will add that as the HR team have been named and if it is more comfortable for you, all correspondence going forward will be with myself. DS – Yes please. FB – You will not receive any further contact from the HR team FB – We will need to complete all notes and at least a further 4 to 5 days to carry out any other interviews, are you happy to plan another face-to-face meeting for us to give our feedback and the outcome of the grievance? SC – Yes, you are aware of our stance and just want peace of mind this is being dealt with, we just want this to be a speedy process. *** end of meeting ***”[165]That extract is from the version that was approved by Mr Seymour (see (181)). 44 / 107[166]Thus, during the meeting Mr Seymour confirmed he had no prior mental health conditions, Mr Beaton explained the benefits of OH to facilitate any reasonable adjustments and asked Mr Seymour to re-consider his refusal to be referred to Occupational Health, explained that Vantiva had the right to stop sick pay if he declined, and that Mr Seymour and Ms Chater collectively agreed to “have a look at it” over the next few weeks but not imminently.[167]As to the request for a redundancy payment Mr Beaton explained to us [FB/12] that Mr Seymour’s role was not redundant nor was there any suggestion of a redundancy exercise. He believed Ms Chater was seeking an ex-gratia payment so Mr Seymour could leave his employment due to the investigation that had been commenced against him.[168]Mr Seymour’s version of events [DS/13] was that he “… I don't remember much about the meeting which was supposed to be about my Grievance but I do know got upset as Francis Beaton used it to attack my mental health which I had not gone there to talk about. I felt I could not say no to him and he tried to bully me into a Occupational Health appointment which I was not comfortable with.”.[169]He gave no detail of what Mr Beaton said or Mr Beaton’s manner that he says was the basis for the attack on his mental health. When he was asked in cross examination he complained Mr Beaton had “Used this to grill me about things other than the grievance” and “I went for a meeting about my grievance not to be grilled about my mental health”.[170]Ms Chater described this meeting in her statement concerning the impact on Mr Seymour as “a questioning session about Darren’s Mental Health and the bombardment to attend a Occupational Health [appointment] (Darren was too intimidated to refuse), but on frequent occasions at that meeting, [Darren] left the room to compose himself and was crying and distressed”.[171]In her oral evidence she emphasised that Mr Seymour felt attacked and ambushed and when asked for the basis for this told us it was the attempt to discuss his mental health something that Mr Seymour was not there to discuss.[172]Based on the recording, we find in contrast to the way Ms Chater portrayed events Mr Beaton was perfectly civil and did not shout at her in the car park. Having pointed out she had a blue badge, his concern as it appeared to us, was that she did not incur a fine from the hotel/its parking company.[173]Mr Beaton’s recall of the initial exchange was like Ms Chater’s also inaccurate in that Ms Chater did not say ‘I am disabled I will park wherever I like’. However, before us she repeated in almost identical terms the comment “We don’t need to ask to leave the room”. In the context of a grievance (or any other form of) meeting that suggests a lack of respect/courtesy consistent with the manner he states she displayed throughout. 45 / 107[174]In closing submissions Ms Chater repeated the claim that Mr Beaton used the grievance meeting “as a platform … to initiate discussions [about Mr Seymour’s] mental health …. the Claimant felt intimidated into [sic.] this request, as Francis Beaton was his Director, the subsequent questions that Mr Beaton posed to the Claimant made him feel, intimidated, degraded and in terms violated his dignity, as he was pushed into the discussion.”[175]We again explained to Ms Chater that did not form one of the issues identified before us against Mr Beaton or the respondent. That said this it did form one of the allegations in his first claim [15 - 16].[176]We find that viewed objectively, the context was the topic of how Mr Seymour could return to work. That was raised by Mr Seymour. We find Mr Beaton was trying to reassure him that that what had occurred so far was not a disciplinary process but an investigation and that Vantiva were duty bound to investigate the complaint. Beyond that Mr Beaton explained how in a previous case following the investigation no disciplinary action was taken. There it turned out that complainant’s perception was wrong and alleged perpetrator was back to work and nobody thought the worse of[177]In our considerable industrial relations experience the giving of that example went beyond what an employer would ordinarily have said or done and was to reassure Mr[178]We find the discussion about Mr Seymour’s state of mind emanated from Ms Chater raising this in the context of his position being untenable and him seeking a redundancy/ex gratia payment. Again, Mr Beaton sought to reassure him referencing that his clean disciplinary record, good character and employment record would all be taken into consideration. It was when Ms Chater raised Mr Seymour going to see a counsellor that Mr Beaton mentioned Vantiva’s health assured scheme and OH.[179]We find the Mr Beaton’s comments were made to reassure and provide access to sources of advice or help (and that includes OH who could of course recommend specific help be provided). Even if that had been a complaint before us in our judgment it came nowhere close to constituting harassment. In our judgment it was the opposite; it was an attempt to support and assist. It is unfortunate that Mr Seymour did not view it in that way. We accept due to his state of mind at the time he did not.[180]At 2:53 pm on 8 November Mr Beaton emailed Mr Seymour [382] to thank him for attending the meeting, to say the minutes would follow, to confirm that Mr Seymour had declined Occupational Health, asked Mr Seymour to confirm if he changed his mind. He also sent details of Vantiva’s Group Income Protection scheme with MetLife stating:- "This covers long term absence from work and can provide up to 70% of your income. To start the process with MetLife you will need to complete the consent form. MetLife is secondary to Occupational Health and does not replace the company's Occupational Health provider.”[181]At 11:59 on 9 November 2022 Mr Seymour was sent a copy of the notes of the meeting [381-382]. He provided some revised notes approximately 9½ hours later. His 46 / 107 email was signed off “Regards, Darren Seymour” [381]. We return to the speed at which these were addressed at (184) below. His amended version of the notes corrected a typographical error: – “SC - Darren now feels his position within the company is untenable and he has lost the respect of his colleagues, his good name has been besmirched by a group of a certain demographic seeking a vendetta because he questioned the timings of individuals break times. And returning to the workplace fills him with dread, his GP feels that he needs to be watched and is currently on 15mg of Mirtazipine (Anti-depressant drug) with the dosage under review.” [389][182]Having been asked to review the notes during cross examination Mr Seymour was asked if he agreed that it did not appear that Mr Beaton was attacking his mental health. Mr Seymour agreed, “I can’t see it – no”. He was then asked if he also agreed that it was Ms Chater who raised Mr Seymour’s mental health and not Mr Beaton and he confirmed she did. HARASSMENT - 7.1.3 JACQUELINE HARRISON REQUESTING C ATTEND AN OCCUPATIONAL HEALTH APPOINTMENT BY EMAIL ON 10 NOVEMBER 2022.[183]On 10 November 2022, Mr Beaton emailed Mr Seymour [209] a letter from HR [211]. It is worthwhile relaying what the letter said:- “I write as a follow up to my email sent to you on 1st November 2022 in which I sent across our Company Sickness Policy and explained that it would be beneficial for you to have an appointment with the Company’s Occupational Health (OH) provider, in line with our contractual Company Sick Pay. …Unfortunately the Company is still yet to receive your consent form for Occupational Health and it has been brought to my attention that on 2nd November, you emailed Fran Beaton, UK Distribution Director, and informed him that you will not see Occupational Health. In accordance with our Sickness Policy, which was sent to you on 1st November 2022, the Company reserves the right to withhold or suspend sick pay under its contractual sick pay scheme if you refuse to attend an appointment with an occupational health adviser or a doctor at the reasonable request of the Company. Therefore, please be advised that your company sick pay has been suspended from the date you refused, 2nd November 2022, and you will receive Statutory Sick Pay in its place.”[184]It was suggested to Mr Seymour in relation to allegation 7.1.3 that the letter didn’t request an OH appointment be arranged. He replied, “I didn’t refuse”. The judge explained that was not what he was being asked and explained the issue. Mr Seymour replied, “If I read it now : No but that’s not the way I read it at the time.” 47 / 107[185]The point about his refusal aside, he did not consent and in accordance with its company sickness policy of 1 November 2017 Vantiva suspended his company sick pay:- “The Company reserves the right to withhold or suspend sick pay under its contractual sick pay scheme if you refuse to attend an appointment with an occupational health adviser or a doctor at the reasonable request of the Company.” [146][186]That notice of suspension of sick pay was sent 9 days after the email of 1 November and 2 days after the grievance meeting at which Mr Seymour had agreed to review the position.[187]As to the failure to respond, in cross examination Mr Seymour told us “They didn’t give me time to look at this”, Vantiva “were not listening” and he “Couldn’t do a yes/no”. In contrast the notes of the grievance meeting on 8 November were reviewed and amended in 9 ½ hours (see (181)). When asked about this Mr Seymour pointed out that there were only 5 amendments to those notes, no real disagreement over what said and at other points it had taken I'm weeks to respond to emails, if at all.[188]Mr Seymour conceded that the email and accompanying letter did not contain a request for him to attend an OH appointment. We find that letter did not contain such a request but instead was notice his company sick pay was suspended due to his refusal to attend Occupational Health. That being so the harassment complaint, as put in relation to this head, also fails.[189]The letter of 10 November 2022 also stated that should Mr Seymour decide to attend OH, company sick pay would be re-instated. He later agreed to do so (we address the OH appointment he attended starting at (227)) and his sick pay was re-instated. We should add that over the course of his absence Mr Seymour was paid his full contractual sick pay entitlement (10 weeks given he had over 5 years’ service (see [182] and (271))).[190]On 10 November 2022 Mr Beaton interviewed Miss Waters as part of Mr Seymour’s grievance. Later that day (10 November) Ms Chater replied on Mr Seymour’s behalf (“Sent on behalf of Darren Seymour as his representative - Sharon Chater”) [209] stating that he had not declined to see OH but merely delayed this. She also raised concerns regarding Mrs Harrison’s involvement.[191]On 11 November Ms Clifton received a phone call from Ms Chater. Her notes [212 to 215] record that Ms Chater stated that Mr Seymour [REDACTED]. Ms Chater attributed that to a letter from Mrs Harrison threatening to stop his sick pay because Mr Seymour refused to meet with OH. She described that as bullying and held Vantiva personally responsible. The notes also record that Ms Chater went on to relay an allegation of a further data breach.[192]Ms Clifton took advice from Mrs Harrison and then called Ms Chater back to make sure that Mr Seymour knew about the Employee Assistance Programme and see if there was anything else Vantiva could do [214 to 215].[193]We find around this time there was a change in Ms Chater’s involvement. Having relayed the events of 25 October Mr Seymour told us :- 48 / 107 “10. I remember Shaz helping me to write everything down and I remember telling her to deal with Technicolor because I couldn't.11. I remember feeling very upset, all the time and the GP giving me medicine to cope. I remember Shaz telling me an email came to ask me to go to an Occupational Health person but that was after one day of me being signed off sick so I didn't think it was right. I felt it was part of the plan to get rid of me.12. I then made a formal grievance to Francis Beaton, Director, …”[194]It is unclear which invite to an OH meeting Mr Seymour refers but given he refers to the day after being signed off sick (the first MED3 Sick Note was dated 24 October 2024 [333]) we date that to 25 October. Before us Mr Seymour accepted by that point he was not picking up all of his emails and instead Ms Chater was picking up some of[195]Ms Chater orally told us that she was helping Mr Seymour to respond to correspondence. For example, “8. I assisted Darren to raise a Grievance on 2nd November 2022 …”.[196]Her account [SC/9] makes clear that at least until 10 November Mr Seymour was still picking up emails: “9. On the 10th November 2022 after the Mercure Meeting, Darren told me he had got an email suspending his sick pay from Jacqueline Harrison, pages 209-211 …”[197]Yet by 14 November:- “11. … I picked up the email on Darren's account, over a week had lapsed after it had been sent as I hadn't had time to open emails, … I opened the emails but did not discuss with Darren, as he wasn't in a fit state, nor did I reply.”.[198]She told us:- “12. On the 21st November 2022, I sent back the completed form for the OH appointment to Francis Beaton … I did state I would send a doctor’s letter, which I did so on 26th November 2022 …”. The email of 26 November was signed off “Sharon Chater ON BEHALF OF DARREN SEYMOUR”[199]Ms Chater’s suggestion at [SC/11] that the email was a week old on 14 November is at odds with Mr Seymour accessing his email account on 10 November. We find based on his and her account he clearly had accessed emails until 10 November. That was the day/night when a significant mental health incident occurred. Accordingly, we find on balance from 10 November onwards Ms Chater was responding to emails on his 49 / 107 behalf. For the reasons we give below starting at (392) we find that from spring 2023 Mr Seymour had no involvement in reading or responding to correspondence at all.[200]Ms Chater sought to suggest to Mr Beaton that Vantiva sought to mis-portray whether Mr Seymour’s mental health crisis involved an “attempt” or a “threat” of suicide. Those are not terms that a Tribunal would now use to describe those actions but as they are the terms she used, so we repeat them.[201]We noted that one of the questions Mr Beaton asked OH to address in the draft OH referral the Tribunal asked to be included in the bundle was exactly on that issue as there appeared to be some confusion [529]:- “[REDACTED] – we have had some conflicting information: [REDACTED] [REDACTED] [REDACTED] What is the real position”[202]We find he had identified there had been some confusion and this was thus seeking clarity. We find in the absence of evidence over and above that proposition, what happened was merely that there was some confusion. We find that he had identified the confusion and had sought to clarify the position points against bad faith on Vantiva’s part. HARASSMENT - 7.1.4 FRANCIS BEATON (UK DISTRIBUTION DIRECTOR OF R) REQUESTING C ATTEND AND OCCUPATIONAL HEALTH APPOINTMENT BY EMAIL ON 14 NOVEMBER 2022[203]Mr Beaton told us [FB/20] in light of that telephone call he felt it was important to check in with Mr Seymour 203.1. to find out how he was, 203.2. in light of Ms Chater’s comments in both in the email on 10 November and in the telephone call to Ms Clifton if there had been any that had caused Mr Seymour to experience suicidal thoughts or feelings, or place him at risk of suicide, he felt he needed to make sure there was clarity around them. 203.3. to clarify why the decision had been made to withhold company sick pay, 203.4. to explain that the company sick pay would be reinstated should he decide to attend OH and 203.5. given Mr Seymour’s concerns about the involvement of HR, to explain that Mr Seymour had confirmed in the meeting of 8 November that Mrs Harrison did not form part of his grievance [202] and that Mrs Harrison would not be involved with the hearing of his grievance.[204]Amongst other matters in an email of 14 November 2022 [216] he said this:- 50 / 107 “Further to the email received on the 10th November and the phone call to Kelly [Clifton] on the 11th. We want to ensure you are ok having learnt that you attended hospital. Please see below my responses to the concerns raised by your partner on your behalf: The decision to suspend sick pay is due to your failure to consent to Occupational Health. By doing this you are effectively refusing what we believe is a reasonable request from the company to support both your engagement with the business and help with understanding what steps we can take to facilitate and support your return to work in the future.• Grievance letter dated 2nd Nov - DS - "I do not wish to pursue speaking to your OT at the current time"• Minutes from grievance meeting 8th Nov SC - "we will consider this over the next few weeks but not imminently"; DC - "I will speak to the mental health team on Friday first" I would also note that during the meeting on the 8th November, there was nothing agreed regarding OH. You told me your intentions and I advised that you should consider OH. If you have changed your mind on OH, please complete and return the consent form.”[205]He then addressed Mr Seymour’s concerns about the involvement of HR before concluding:- “I am disappointed to read that you consider that you have received a letter which you perceive as bullying and intimidating. I hope I have clarified why the letter was sent and reiterate that if you wish to attend Occupational Health then company sick pay will recommence following attendance to your first appointment (as previously advised). Kind regards,”[206]In response to Mr Seymour’s assertion Mr Beaton told us [FB/22] he “did not request Darren attend Occupational Health on 14 November 2022 but simply sought to explain why the decision had been made to withhold Darren’s company sick pay and clarify any misunderstanding.”[207]Mr Seymour accepted before us that the email from Mr Beaton did not contain a request for him to attend an OH appointment and nor was it harassment. We find that Mr Beaton was merely providing an explanation of the position regarding sick pay and leaving it to Mr Seymour to decide how he wished to proceed. Accordingly, the facts that underlie that complaint did not occur as alleged so that complaint must also fail. 51 / 107[208]Mr Beaton concluded his grievance investigation on or around 15 November 2022. Conscious of what Ms Chater had relayed in her call to Ms Clifton of 11 November he told us [FB/13] that he felt that the usual process, a face-to-face meeting to relay the outcome, might not be appropriate so he emailed Mr Seymour [409] to ask how he would like the outcome relayed to him.[209]Mr Beaton did not receive a response and so emailed Mr Seymour again on 21 November 2022 [409] asking how he would like to receive the grievance outcome and explaining that if he did not hear back by the end of that week, he would provide the outcome report by email.[210]Neither Mr Seymour nor Ms Chater, replied to that email.[211]At just before 1:00 pm on Friday 25 November Mr Beaton emailed Mr Seymour with a summary of the grievance points, his findings and overall conclusion [409 & 411-415]. HARASSMENT - 7.1.6.1 ON 22 NOVEMBER 2022 AND 23 NOVEMBER 2022 MR BEATON REQUESTED ACCESS TO MR SEYMOUR’S MEDICAL RECORDS[212]On 21 November 2022, Ms Chater returned the completed OH forms on Mr Seymour’s behalf [217 – 218] via email [227]. Within Ms Chater’s email she stated that while Mr Seymour had consented to OH, he did not consent to the OH provider having access to his medical records as this was not a mandatory requirement.[213]Mr Beaton told us [FB/25] that he discussed with Mrs Harrison the effectiveness of an OH referral without the OH provider having access to Mr Seymour’s medical records. On 22 November 2022, Mr Beaton emailed Mr Seymour to explain the benefits of the OH provider having access to his medical records :- “Whilst we understand your caution to allow access to all of your medical records for the purpose of producing the occupational health report, we believe it would assist in supporting you with your recovery, and would assist both parties to cooperate together moving forward. If the physician who conducts the assessment is able to review your medical records in full, they will be able to come to a more informed conclusion as to the adjustments that can be made to support you in returning to work, and can suggest avenues that we can explore to ensure cooperation in producing an environment you feel you are able to comfortably work in.” [227][214]Mr Seymour accepted in cross examination the request from Mr Beaton was for OH to see the his medical records and that email from Mr Beaton did not request access to his medical records. He stated “Agreed. That how reads there yes but that’s not the context at the time. My mind was not thinking that way”. Similarly, when asked if he accepted it was not harassment he stated “You are not listening. My mind was not fully straight” before accepting that it was not.[215]As to the second aspect of the compliant concerning 23 November 2022Mr Beaton told us [FB/28] that he did not send any correspondence to Mr Seymour, let alone request access to his medical records, on 23 November 2022. Instead, he told us that he believed that allegation was referencing an email from Ms Chater to Mr Beaton dated 23 November 2022 [225 – 226]. 52 / 107[216]Before us Mr Seymour accepted he was referencing Ms Chater’s email in his complaint and there was no letter from Mr Beaton of Vantiva on 23 November. That being so there was no conduct by Mr Beaton as alleged on 23 November 2022 that could the basis of this complaint.[217]Despite those concessions in closing submissions Ms Chater referred us to Vantiva’s “… repeated attempts to access the Claimants medical information at7.1.6.1 and7.1.6.2 were collectively intimidating to the Claimant. The Claimant felt the repeated requests for his medical information, were collectively humiliating and degrading, the Claimant referred in his testimony to NO means NO and referred to this as being mental rape, because that’s how he saw it. The Claimant stated he was in fear of his private medical information being leaked in to the warehouse environment where he had previously worked, which had happened with his private meeting with HR, and as a consequence felt that he could not risk being humiliated or further degraded should he have handed over his medical information and it had become for whatever reason leaked into the warehouse. This was repeated harassment which is the act of persistently carrying out unwanted behaviours that made him feel distressed and severely impacted his mental health. (EHRC [code] Section 7.6, Section s.26(1))”[218]Mr Seymour having conceded that the request from Mr Beaton was for OH, not Vantiva, to access his medical records, and there was no letter from Mr Beaton of Vantiva on 23 November that complaint again must fail for the same reasons as we give at (207). FIRST GRIEVANCE OUTCOME AND SUBSEQUENT EVENTS[219]On 25 November 2022, Mr Beaton emailed to Mr Seymour [408] the outcome of the grievance [411 to 415]. He confirmed he did not uphold the grievance and did not propose to take any further action on it. He informed Mr Seymour he had a right of appeal, if he wished to exercise that right he should do so within five working days of the receipt of that letter and explained what Mr Seymour needed to do to do so.[220]Mr Seymour appealed on 25 November 2022 (we were not referred to a copy of the appeal, nor could we locate a copy in the bundle - that date comes from the subsequent grievance appeal outcome letter). His appeal was determined by Mr Paul Edwards, UK Supply Chain Director. Given Mr Edwards’ decision does not form part of the complaints before us we do not propose to dwell on it. The grievance appeal is however referenced at various points so it is helpful to relay that Mr Edwards’ outcome was dated 10 January 2023 [416].[221]On 26 November 2022 at 10:25 Mr Seymour forwarded to Mr Beaton a report from his GP dated 23 November [230]:- “This is a supporting letter for Mr Darren Seymour who is currently a registered patient at Beech Tree Medical Practice. Mr Seymour has been recently diagnosed with severe depression with anxiety. He first made contact with us in October 2022 following 53 / 107 stress at work. He claims that this all stem from the harassment and bullying at his work place and also claims that they did not accept his fit note certificate and hence the need to obtain this supporting letter. His day to day functioning has been affected, whereby he suffers [REDACTED] he was referred to [REDACTED]. We have also been in touch with [REDACTED] and he is currently taking [REDACTED] under the care of hospital consultant.”[222]In the covering email [229], this was said on Mr Seymour’s behalf:- “This email and attached doctors report form part of Darren's medical record, therefore should be treated as STRICTLY PRIVATE AND CONFIDENTIAL and Darren stipulates that this only be shared with Occupational Heath or HR/Legal departments outside of Vantiva, Rugby, as Darren feels a lack of discretion and unfair bias exists within HR Rugby as well as distrust that this sensitive information will remain private.”[223]On 08:52 on 28 November Mr Beaton acknowledged receipt of the GP letter and agreed to do as asked whilst the grievance was ongoing [231] “As per your request this will currently only be shared with the OH practitioner; any medical records will not be shared with HR until resolution of your grievance. I will advise you in advance if this position changes in the future.”[224]At 09:37 on 28 November 2022 Mr Beaton also emailed Mr Seymour [223-224] responding to Ms Chater’s email of the 23 November clarifying several issues concerning the OH assessment. Amongst other matters he stated “• Occupational Health assessments are unaccompanied to allow you and the medical professional to discuss your circumstances without interruption.• I can confirm that you will not be unsupervised when attending Barsan for the purpose of the Occupational Health assessment. Your partner can accompany you to the site where I will ensure somebody will meet you and your partner, and then accompany you from the entrance to the building to the meeting room. …• The Occupational Health Report will be shared only with those that need to review and consider its content”.[225]Ms Chater responded on behalf of Mr Seymour at 14:35 on 30 November 2022 [221- 223] reiterating her concerns about a number of points before stating “Please detail whom Darren’s OH report will be shared with, as this is meant to be PRIVATE AND CONFIDENTIAL and it is not appropriate for this to be shared with HR due to the ongoing grievance”. 54 / 107[226]On 1 December 2022 Mr Seymour provided a MED3 Sick Note dated 1 December 2022 for the period from that date to 31 December 2022 [335]. The reason given was “stress at work”. Again, no reference to adjustments was made. THE EVENTS OF 20 DECEMBER 2022[227]On 20 December 2022 Mr Seymour attended the OH appointment at Vantiva’s Barsan site.[228]In her closing submissions Ms Chater raised that contrary to a promise in advance by Mr Beaton that he would be met by a Vantiva manager, Mr Seymour was met at the door by Mr Beaton, a director, and Dwayne Lovatt, a Team Leader. She alleged that led to Mr Seymour feeling intimidated and humiliated by their presence as they were known to him, which in turn created a hostile environment. As a result she states Mr Seymour began to cry and became agitated, which violated his dignity in front of a Team Leader who was already known to him. She argued this as a harassment complaint.[229]In his witness statement Mr Seymour said this ”15. … Francis Beaton was there and I had been told he wouldn't be, it made me feel anxious and scared, I wanted just to run away. They made Shaz stand outside and she couldn't go with me. There were windows and I just wanted to get out, I cant remember much about what the OH said but she made me feel anxious and upset and I didn't know how she wanted me to answer and left me on my own while she went to see other people, [he then went on to speculate who that was] ….” and Ms Chater this “13. … Francis Beaton actually met Darren at the door to the OH appointment to further intimidate him and he also arranged for a Team Leader, Duane Lovett, who was well known to Darren to take him to the OH, which made Darren feel even more intimidated and embarrassed, despite Francis Beaton giving assurances this would not happen and that a neutral person would meet Darren, please see pages 219-228 of the bundle”[230]Again, whilst Mr Rhodes pointed out that was not one of he complaints argued, the judge allowed the question to be put to Mr Beaton as it had been led in evidence and whilst not one of the issues it was raised in the first claim form [18].[231]The email chain at [219-228] referenced by Ms Chater included an email from Ms Chater on Mr Seymour’s behalf [222]:- “• It is inappropriate, bullying and intimidating for Darren to attend Barsan for his OH appointment for the following reasons 1. Barsan is operating as a hub for Vantiva, you are renting space, so these are you company premises the same as Vantiva Rugby is leased. 55 / 107 2. Barsan is staffed by Vantiva paid employees, some of which are known to Darren and he has spoken to them and worked with them on occasion therefore finds meeting them intimidating. 3. A meeting room is NOT a medical room and anyone, including yourself, as a employee of Vantiva, could be in attendance at that building and “over hear” what is said. Therefore not private, not confidential and Darren’s state of mind is still such that he has extreme anxiety encountering ANYONE from Vantiva or discussing matters regarding work.”[232]Mr Beaton responded on 6 December [221]:- “• Staffing - I will have a Vantiva manager meet you at the door to the building to escort you to the meeting room. You have no need to interact with anyone;”[233]Mr Beaton accepted he met Ms Chater and Mr Seymour outside the Barsan site when they arrived and he acknowledged the first thing that Ms Chater had said was that he was not supposed to be there. He accepted Mr Seymour was visibly upset. As a result he suggested that either he or Mr Lovett who was smoking 20 meters away could take Mr Seymour to the OH meeting. He told us Mr Seymour preferred Mr Lovett to take him and so Mr Lovett did so.[234]Mr Beaton’s view was that when he referenced a manager he meant anyone of that level or above, and he fell within that. The impression he gave us was that he understood the concern was that Mr Seymour did not meet his peers and reports. When asked why he went to Barsan that day he freely accepted he did so to meet the OH assessor and Mr Seymour.[235]It transpired Mrs Harrison was at the site that day too although she had not mentioned that in her witness statement as two other OH assessments were being carried out that she was responsible for.[236]Ms Chater complained about that referencing Mrs Harrison’s witness statement :- “26. After the correspondence with Darren and Ms Chater in November 2022, I did not have any further involvement with Darren until May 2023. From November to May, we were awaiting the Occupational Health report on Darren and then Darren’s first grievance and appeal had been concluded meaning that Sam could pick back up the correspondence with Darren and Ms Chater regarding Darren’s absence as this was within her remit as People Partner Advisor. The only involvement I had was to forward Darren’s contractual documents to him on 21 March 2023 (page 261) at his request.”[237]Whilst Mr Seymour’s had made plain that he did not want anyone from Vantiva Rugby HR to have dealings in relation to his grievance, his assertion that he did he want to see anyone from Vantiva (including Mr Beaton) at the OH appointment was impossible to achieve as the meeting was to take place at the Barsan site as was agreed; after all he had to be let into the building. 56 / 107[238]As to the involvement of Mr Beaton, Mr Seymour had been content for him to hear his grievance, had agreed at the end of the grievance “to maintain contact and reconvene for another meeting later” [205] and had acceded to Mr Beaton’s request to attend an OH assessment. He had also sent to Mr Beaton his GP report of 23 November 2022 [230].[239]In the various emails Mr Beaton had made plain that whilst OH assessments were unaccompanied, Mr Seymour would have to be supervised when attending the Barsan site and he would ensure a manager would meet Mr Seymour and accompany him from the entrance to the building to the meeting room (see (224)). We accept that someone in authority needed to be there to ensure there was no issue on the day and that Mr Seymour saw the OH assessor unaccompanied by either someone from Vantiva or a companion of his choosing.[240]We find it is understandable that Mr Beaton would have considered that he was probably the best person to meet Mr Seymour on the day given Mr Seymour had not objected to his involvement.[241]We accept that given his state of mind at the time subjectively Mr Seymour considered that the presence of Mr Beaton and Mr Lovett met the threshold for harassment, however for the reasons we give in the preceding paragraphs, we find that was not Mr Beaton’s purpose and viewed objectively and in the round in our judgment its effect did not meet the s. 26(1)(b)(i) or (ii) threshold. THE OH ASSESSMENT OUTCOME[242]The OH assessment was conducted by Hilary Horton RN of Enspirita Ltd. Following the meeting Vantiva received a letter dated 20 December from her summarising the result [233 - 234]. Ms Horton signed off her letter stating she was a Specialist Practitioner Occupational Health and gave her NMC pin no.[243]Mr Seymour complains he was not sent a copy of that letter by Enspirita despite having requested a copy of any report. That is correct. He was sent a copy of the OH assessor’s letter on 30 January 2023 by Vantiva (see (281)).[244]Ms Horton’s letter of 20 December said this:- “The purpose of this case report is to give an occupational health opinion on the referral you have made for the above employee. On commencing the OH assessment Mr Seymour was advised regarding a data protection check; I explained my role, the confidentiality of the service and the outcome of the consultation would be a report to management with clinical advice and recommendations where appropriate. Mr Seymour did not speak to me or acknowledge me at the beginning of our meeting. He paced up and down by the window, looking out occasionally at someone standing below in the car park. Unfortunately there is no OH report of any substance to write as Mr Seymour would not sit down or engage in the process. He was quite calm and not at all emotional. I advised him the door was left open if he wanted to leave but he continued just to pace up and 57 / 107 down and ignored me despite several different approaches I made to him. I stayed silent for a while to allow him to speak but he continued just pacing up and down by the windows. [The advisor then recounted the extent of her interactions with Mr Seymour being cursory responses from him to 6 questions the last of which was:-] I then asked how he thought this would all end and he replied "it's up to them" He would not speak after that; he just paced the floor. After 24 minutes I asked if he wanted to go and replied he wanted to be with his partner. She was in the car park so I walked Mr Seymour down the stairs and back to his partner waiting for him at the door. There is insufficient clinical evidence known by Occupational Health to advise on Mr Seymour's 'mental fitness or ability' to attend any meetings or hearings I'm afraid. There may be some benefit in writing to his GP which I would happily do so on further instruction. I apologise for the lack of any useful information in the report but I believe Mr Seymour had made up his mind when he came to the OH appointment to not cooperate or engage in the process. Possibly influenced by another.”[245]In closing Ms Chater again sought to raise another matter not within the list of issues that on this occasion had not been led in evidence by Mr Seymour or her, namely whether the GP report of 22 November 2022 [344] had been shared with Occupational Health. When asked about this Mr Beaton’s initial response was to state he was unsure if the OH had seen the GP letter. His evidence straddled days 7 & 8 (and was given the usual oath warning). Overnight he recalled that he had shown the OH assessor the GP Letter on a screen, and that Mrs Harrison was also present. Ms Chater argued apart from his oral testimony to state this letter was shared there was no other evidence of that (neither Mrs Harrison nor Mr Beaton addressed this in their witness statements).[246]Ms Chater suggested that could explain why the OH assessor was unable to offer Mr Seymour assistance to get back into the workplace by suggesting reasonable adjustments (and thus prevent his ultimate dismissal).[247]The difficulty with the allegation as now put is that in the original claim Mr Seymour said this:- “She left the room to talk to someone and collect my doctors report, (I had previously sent my GP's Report to Francis Beaton only, instructing him to forward it to the OH) when she came back into the room she commented about my medication dosage and after a while told me she would take me to my partner in the car park.” [18] 58 / 107[248]Accordingly on Mr Seymour’s own account the OH assessor did see his GP’s letter. Fr the reasons we go on to address she concluded there was insufficient clinical evidence to advise. That argument must therefore fail.[249]That aside we address at (37.7 & 39) our request for the referral document, Mr Beaton’s recall of events overnight and him locating and providing documents.[250]With regards to the apparent failure to send the GP report to OH with the instruction letter the Tribunal can find no trace the GP letter supplied by Mr Seymour’s GP was sent to Enspirita in advance of the OH appointment. Following a question from the judge “Was the GP letter sent to OH?” the Judge’s note of Mr Beaton’s initial response was “I believe it was. HR not involved because of grievances”. The judge then pointed out if so the OH letter made no reference to the GP letter. as a result the judge asked for the OH referral to be provided.[251]Whilst other documents such as a job description were attached [537] the referral does not specifically state the GP report was attached. The referral did however ask “Can you review the medical report that he has submitted and advise accordingly.” [540]. Given the evidence of Mr Beaton, which we accept notwithstanding our comments at (254) below, we find it was not sent with the referral. If the GP report had been sent with the referral we find the OH assessor would not have asked to see it which we find she did.[252]We find the reason it was not sent with the referral were the restrictions placed on Mr Beaton as to the use of HR (we return to that below). We make no criticism of Mr Beaton in that regard. He was in an extremely difficult position. We find, as his various emails disclose, that he was trying to do his best to signpost Mr Seymour to the help available and to identify the medical position via OH.[253]As an experienced but not medically qualified Tribunal we noted the GP letter does provide basic information such as the diagnosis and a list of the medication prescribed but not the doses. Much of its content were the sort of questions we regularly see OH assessors recording as having been asked at assessments. It is highly likely in our view the GP letter would potentially have merely prompted more (or the same) questions of Mr Seymour from the assessor to fill in the gaps raised by the GP letter rather than answer questions the OH assessor had. Given what the assessor reported as Mr Seymour’s non engagement we find it is extremely unlikely the GP letter would lead to the result suggested by Ms Chater. That is consistent with the OH assessor’s report.[254]Whilst this does not form one of the specific complaints before us one criticism that we make of Vantiva relates to the OH referral. That appears to have been completed by Miss Waters, albeit using the draft referral form and basic questions asked by Mr Beaton (see [541 & 5232-532]). She too was the point of contact for the referral [535]. The final version of the referral was copied to Mr Beaton by Mrs Harrison on 19 December [534].[255]Whilst Miss Waters involvement appears to date from the time after the initial grievance had been concluded on 25 November 2022, given Mr Seymour had appealed on 25 November 2022 (see (219 & 220)) whilst the grievance itself had concluded, the appeal had not and so the involvement of Miss Waters (of HR) was 59 / 107 contrary to the spirit of the assurances given by Mr Beaton in the light of the concerns expressed.[256]In his outcome letter Mr Beaton made plain that any appeal should be directed to Mr Edwards [415]. Whilst Mr Beaton was not asked when he became aware his decision was being appealed we find on balance he or at least HR were aware of it and that the grievance appeal was outstanding at the time the OH referral was being drafted. Our findings at (270) reinforce that view. Given the assurances given that does Vantiva no credit. However, we decline to draw adverse inferences from this generally. We find Vantiva was trying his best in a very difficult situation.[257]As the complaint about Miss Waters this was not one of the complaints before us and there is no evidence before us that Mr Seymour was aware of this at the time he brought this complaint. No application to amend has been made to include it.[258]Mr Seymour subsequently complained about Ms Horton to the Nursing and Midwifery Council (NMC) concerning a breach of confidentiality, poor record keeping and dishonesty. Ms Chater sought to ask Mr Beaton questions on Ms Horton’s fitness to practice and suggested the complaint had been upheld pointing us the outcome.[259]Whilst the outcome accepted there were minor inconsistencies, it considered they were not so serious a departure from their standards to raise serious concerns which could result in harm to patients if not put right and that Ms Horton had provided reasonable explanation for some of the inconsistencies.[260]The outcome found that it was necessary for Ms Horton to inform Vantiva why a full OH assessment could not be completed.[261]A further issue centred on the consent form containing information from the General Medical Council (GMC) which misled patients to believing Ms Horton was registered with the GMC. The outcome acknowledged that the consent form contained information about the GMC and referred to a medical assessment. It found that sending that consent form was a human error, Ms Horton did not appear to have directly sent that form and that the ICO and GMC were made aware as the appropriate bodies. It concluded there was no evidence of dishonest intention from Ms Horton as The NMC outcome concluded those matters were not so serious that it was required to take external action to protect the public.[262]In the absence of very strong evidence to the contrary a Tribunal would not ordinarily depart from the findings of a professional body such as the NMC in relation to professional conduct. Given its findings we do not intend to here.[263]We find based on the evidence before us that Ms Horton was entitled to conclude she was unable to provide a report of substance or useful information from an OH perspective. That being so we find she was entitled to conclude it was necessary for her having been instructed to provide a report to inform Vantiva why a full OH assessment could not be completed. Both are supported by her suggestion that Vantiva seek a GP report (and the steps Vantiva subsequently took to obtain that).[264]Whilst she may have also taken the view that it was appropriate for her to copy that to Mr Seymour, given the NMC’s findings, we find that was a matter for her. 60 / 107[265]When it came to Vantiva’s attention that it had not been copied to Mr Seymour that was rectified on 30 January 2023 (see (281) and the following paragraphs).[266]On 28 December 2022 Mr Seymour provided a MED3 Sick Note dated 28 December 2022 that expired on 25 January 2023 [336] giving “Work related stress” as the cause of the absence but again making no reference to adjustments.[267]As we say above Mr Edwards’ outcome to Mr Seymour’s appeal against the decision on his grievance was dated 10 January 2023 [416].[268]Also on 10 January 2023 Mr Seymour wrote to the OH assessor Hilary Horton enquiring about the OH Report. He received via email the following response dated 16 January [236] “Good morning Darren There was no Occupational Health report written. You will recall I was unable to carry out any assessment as you decided not to sit, talk to me or engage; just walking up and down by the window. I did try hard to support you and assure you that my role was 'medical in confidence' and to help you. But after 18 minutes of no interaction I asked if you wanted to leave and you said yes. I walked you back to your partner in the car park. I informed your employer of what happened.”[269]We find that response was accurate.[270]On 11 January 2023 Mr Seymour received an email from Mr Beaton referencing Mr Beaton’s earlier assurance that whilst the grievance against certain named Vantiva employees was outstanding, all communication between Mr Seymour and Vantiva would be through him. Mr Beaton indicated that as the grievance and appeal had been concluded he considered it was appropriate that all future communication should be through HR so they would be able to fully support him and his return to work and asked Mr Seymour to address all relevant correspondence to Miss Waters [238].[271]Following that OH assessment Mrs Harrison told us Mr Seymour’s contractual sick pay was resumed and continued to be paid until his contractual entitlement expired [182]. That is supported by the email we refer to at (275) below and was not disputed. HARASSMENT - 7.1.6.2 SAMANTHA WATERS REQUESTING ACCESS TO C’S MEDICAL RECORDS ON 17 JANUARY 2023, 20 JANUARY 202[3] AND 30 JANUARY 2023.[272]Vantiva’s position is set out in Miss Water’s witness statement [SW/36]:- “I did not request to access Darren's medical records on these dates but requested Darren’s permission to write to his GP and Mental Health Crisis Team to seek a medical report. I did this on advice from Occupational Health, and in light of the lack of information given to Occupational Health.” 61 / 107[273]The OH advice she referred to was the penultimate paragraph of the extract we relay from Ms Horton’s report at (244).[274]On 17 January 2023 Miss Waters emailed Mr Seymour [239 – 240] a letter [241 - 243] requesting a medical report from his GP and his Mental Health Crisis Team to determine 274.1. if he was fit to return to work after his sickness absence, 274.2. when he might be fit to return to work after his sickness absence, 274.3. what reasonable adjustments can be made to the working environment to support his return to work and 274.4. if he was fit to attend any informal or formal meetings [241].[275]It explained his rights under the Access to Medical Reports Act 1988.[276]Within the covering email Miss Waters explained to Mr Seymour that his 50 days (10 working weeks) Company sick pay would expire on 24 January and that he would be paid only SSP from 25 January 2023.[277]On 18 January 2023 Ms Chater responded on behalf of Mr Seymour [239]:- “As previously advised access to my medical records, albeit, GP or Mental Health Crisis Team WILL NOT BE GRANTED, you have already received a report from the GP, forwarded by email to Francis Beaton and also for the attention of the OH, Vantiva has no contractual right to see my private medical information and due to the previous leaks within Vantiva, under no circumstance would this be granted on advice from the medical team looking after me and legal representation, the subject is now CLOSED.”[278]On 20 January 2023 Miss Waters asked Mr Seymour to reconsider his decision to refuse consent for a GP report [244] so it could properly understand “• your current state of health in relation to your ability to perform your job;• the likelihood of your being able to resume working in the foreseeable future;• what, if any, steps we might be able to take to facilitate your return to work and/or to support you on your return”[279]Amongst other matters Miss Waters cautioned that it “may be to your detriment to refuse our request to obtain a medical report” because without an OH report:- 279.1. it was very difficult to determine what adjustments might be reasonable to make to facilitate his return to work, 279.2. it would be difficult to establish the likelihood of Mr Seymour being fit to resume working in the future, 279.3. any future decisions would have to be made in the absence of the same, and 62 / 107 279.4. that was in neither Mr Seymour nor Vantiva’s interests.[280]Mr Seymour was asked to reply by 27 January 2023.[281]As no response had been received by 30 January 2023 Miss Waters wrote to Mr Seymour [251]:- “I have not heard back from as to whether you would reconsider consenting to the Company accessing a GP report. Please see attached the letter from Occupational Health. If you have any questions, please do not hesitate to contact me.”[282]Whilst, the point Ms Chater made in closing that we set out at (217) relates, again, Mr Seymour accepted in evidence that the medical consent form [243] did not equate to Vantiva asking for access to his medical records and nor was Vantiva requesting his medical records in Miss Waters email of 17 January 2023. We find those requests were not for access to Mr Seymour’s medical records as alleged but Vantiva seeking permission to write to his GP and Mental Health Crisis Team to seek a medical report.[283]In relation to the allegation concerning 30 January 2023 when the question was put that it was not asking for medical records but instead was seeking a GP report Mr Seymour responded, “As I keep telling you in my mind it was asking for access”. We find Mr Seymour perceived that was such at the time. However, as he accepted his view now was that was not a request for his medical records. Viewed objectively it was not.[284]We find the requests that were made were unwanted by Mr Seymour. They arose out of Mr Seymour’s inability/unwillingness to engage with OH and the consequent inability of the OH provider to provide a meaningful OH advice. The requests were made for reasons we outline at various points above (see for example (145)). Vantiva was duty bound to do all it reasonably could be expected to do to find out if Mr Seymour had a disability. We find it was not trying to harass Mr Seymour. We find when looked at in the round they were in no sense sought due to Mr Seymour’s disability but due to Mr Seymour’s inability and/or unwillingness to engage in an OH assessment and the consequent lack of information Vantiva had concerning his medical position.[285]Whilst that in turn arose from his state of mind at the time and the (incorrect) view he had formed why Vantiva were seeking a report from OH and/or his GP/Mental health crisis team, notwithstanding his subjective view, when viewed objectively and in the round that did not have the effect of creating the proscribed circumstances. They were reasonable requests any reasonable employer was obliged to make and were made :- 285.1. to identify if any adjustments and/or support was required/could be provided, 285.2. if Mr Seymour was a person with a disability, and 285.3. in the context of the absence procedure and the investigation that triggered the events that concern us, if and when he would be fit to return and if not, how long that was likely to last.[286]Accordingly, the objective element of the harassment test is again not met and this complaint also fails. 63 / 107 5.1.1 - THE INVITATION TO THE STAGE-ONE ABSENCE MEETING[287]Miss Waters told us “39. … It did therefore appear he, or Ms Chater, was choosing to be obstructive when it came to us seeking further information about Darren’s health and how we could help him. While I note Darren had raised concerns around data protection, these had been addressed in both his grievance and grievance appeal (pages 412 to 414 and 416 to 420). I was therefore at a loss as to what I could do next to manage Darren’s absence in light of the lack of information we had. Darren was good at his job, he had worked for the Company for many years with an unblemished record and I knew his line manager, Paul Jarman (“Paul”), was missing him. I was therefore keen to try and engage with him to understand if there was anything we could do to assist him back to work. 40. I decided to commence a formal long-term absence procedure. Darren had been absent for 14 weeks and such a timescale was in accordance with the timescale for a stage one absence meeting under the newly implemented long-term absence policy (page 152). I requested Paul Jarman to conduct the stage one absence meeting. ...”[288]Vantiva suggest that as a result on 25 January 2023 Mr Jarman invited Mr Seymour to a stage one long term sickness absence meeting to take place at 10:00 on 31 January 2023 at the Respondent’s office in Rugby. Mr Jarman indicated Miss Waters, was to attend as a note taker. Mr Seymour was informed the purpose of the meeting was to discuss to discuss the likely length of his absence and what, if any, steps could be taken to assist him in returning to work (such as a phased return, amended job duties, altered hours of work or workplace adaptations) to review the information received from OH. He was reminded of his right to be accompanied “a fellow Vantiva employee, a Your Voice representative, a trade union official or a trade union representative (who has been certified by their union as being competent to accompany a worker)”. [246]. Mr Seymour was sent a copy of Vantiva’s Long-Term Absence Policy [248 & 151 – 154]. That was a new policy that was introduced in January 2023.[289]This is argued as the first (of the two) acts of unfavourable treatment for the discrimination because of something arising from disability complaint.[290]Mr Seymour conceded that the holding of a stage 1 meeting was not unfavourable treatment. We agree. It follows the same applies to the invitation. That complaint therefore fails. That said we have considered the question of knowledge of disability.[291]When asked about Ms Water’s email of 30 January asking if he would be prepared to consent to a GP report [251] Mr Rhodes suggested that Mr Seymour had not said that reason he could not provide consent was because of his disability Mr Seymour told us “I didn’t know I was disabled at the time – it was only after the fact that I classified myself at the time.” Mr Rhodes suggests that if Mr Seymour did not know he was disabled as at January 2023, it is difficult to see how Vantiva could be expected to know that he was. 64 / 107[292]For a discrimination because of something arising from disability a respondent must to have knowledge or constructive knowledge of all the elements of disability (see (48)). Vantiva was aware that Mr Seymour was not well and was not fit to work. That aide, despite having tried to ascertain the position from OH and Mr Seymour’s GP Vantiva had little detail of the adverse effect his illness had on Mr Seymour’s ability to carry out normal day-to-day activities other than what it had been told by Ms Chater.[293]We find that in the circumstances by late January Vantiva had done all it could reasonably be expected to do to find out if Mr Seymour had a disability. Despite the low threshold required for “substantial”, we find that given Mr Seymour had confirmed at the 8 November grievance meeting (he had no prior history of mental health issues see (166)) and in the absence of OH or GP advice indicating that his illness was likely to last 12 months Vantiva cannot reasonably have be expected to have had knowledge or constructive knowledge he was a person with a disability.[294]Notwithstanding the concession made by Mr Seymour (see (290)) this complaint also fails for that additional reason. THE CONTRACTUAL POSITION CONCERNING VANTIVA’S POLICIES[295]Despite having provided the variation documents to his employment contracts there was no trace of Vantiva’s new Long-Term Absence Policy being sent to Mr Seymour until 25 January 2023 when it was sent to him alongside the letter inviting Mr Seymour to attend the Stage 1 absence Meeting (see (288)).[296]As we state above in her reply of 1 November [196-197] to Mr Seymour’s email of 30 October [198-199] Mrs Harrison attached a copy of Vantiva’s sickness policy. Mrs Harrison told us she sent the sickness policy only because she thought that was being requested by Mr Seymour. Hs email he said this “• Sickness policy - I do not have a copy of the full company handbook due to no access my company account, therefore I would be grateful if you could email me a copy direct.” [198 & 197][297]There was no trace of other policies being sent to him at all.[298]Vantiva argues her sending that did not mean that the sickness policy was either the entirety of the handbook and/or as a result that the sickness policy was contractual.[299]Ms Chater asserted that as a result of Mrs Harrison’s that Mr Seymour believed Vantiva’s sickness and Long-Term Absence policies were part of its handbook and thus contractual. As a result Mr Seymour argues that this was a change to his terms and conditions of employment, any change required a month’s notice (see (95)) and that rendered the stage one meeting (and the remainder of the process) null and void. In closing Ms Chater sought to argue this as part of issue 5.1.1 (a discrimination because of something arising from disability complaint), a failure to make reasonable adjustments and also a harassment complaint. Again, this point was raised in the first claim form [23].[300]That aside as we say at (312) below Mr Seymour sought to rely on Vantiva’s “ Long Term Sickness Policy” which is at odds with Mr Seymour’s assertion before us that it did not apply. 65 / 107[301]We were told by Mr Rhodes there was no handbook in September 2003 and thus no policies were contractual. That however is at odds with Vantiva’s T&Cs which referred to a handbook. Given also the version numbers of the T&Cs also suggest there were a substantial number of earlier versions, we find there was at some point a handbook.[302]Mr Seymour does not state that as a result of the email exchange on 30 October and 1 November he believed that the sickness policy was the entirety of the handbook and/or as a result that the sickness policy was contractual. Indeed he makes no mention of the exchange. His account at the time is that “11. I remember feeling very upset, all the time and the GP giving me medicine to cope. …” before going on to relay what he was told by Ms Chater about an OH meeting being arranged.[303]If that had been the view Mr Seymour held at the time (and we find given he did not say so, that he did not) it was not reasonable for him to form that view based on him solely being sent the sickness policy. That would have required him to consider that the sickness policy represented the whole handbook. In our judgment that what would have been unreasonable given the absence of other policies of which Mr Seymour would have clearly been aware of such as its disciplinary and grievance procures.[304]Further, it would have required him to consider it was contractual which again he did not say in evidence.[305]That aside, Vantiva’s long term absence policy dated January 2023 [151] specifically states “This policy is not contractual, and the Company reserves the right to change it at any time.” Similarly, its Sickness - Absence and Grievance Policies include similar provisions [155 & 165 respectively].[306]In our judgment those documents expressly did not confer a right on employees and essentially sought to set out what Vantiva considered to be good practice (see Wandsworth (39.6)). We find that the sickness policy and long term absence policies were not contractual. Even if we are wrong on that Mr Seymour was sent them on 25 January 2023 and thus they applied from 25 February 2023.[307]We return to the absence process starting at (323). In the interim Mr Seymour provided a MED3 Sick Note dated 25 January 2023 running to 24 February 2023 stating the reason for the absence as “work related stress” [338] again making no reference to adjustments. THE APPEAL REGARDING THE FIRST GRIEVANCE[308]Also on 25 January 2023 Mr Seymour emailed Mr Edwards [421] “I'm writing to you to raise a formal Grievance against Mr Francis Beaton, Director and the HR team at Vantiva, Rugby for Bullying, Harassment and Intimidation. I have evidence of such behaviour over a period of three months in total where I have been bullied, harassed and intimidated regarding various incidences since I began my sick leave in late October 2022. Furthermore I need to raise a second formal Grievance against Mr Francis Beaton, Director and the HR team at Vantiva, Rugby with regards to information withheld from myself, of which I have a legal 66 / 107 right to have been sent a copy as per terms and conditions as I signed for when it was requested of me by Vantiva. We have evidence of the documents being withheld via a paper trail. Please could you advise in the first instance for both grievances, whether you are the point of contact for these Grievances as I am aware that Francis Beaton is the Director of Vantiva, Rugby, but obviously he would be bias with regard to a grievance against himself and the evidence of both grievances entwines both himself and HR team.”[309]On 27 January Miss Waters emailed Mr Seymour [423] in relation to his grievance of 25 January 2023 concerning Mr Beaton and the Rugby HR team. She indicated that as Mr Edwards had managed the appeal of his earlier grievance he would not be suitable to hear the grievance. She asked Mr Seymour to submit his grievance to her in written form with evidence and clarify the reasons for it and she would review it and where appropriate, issue it to the correct person to investigate.[310]At 5:12 pm on 29 January Mr Seymour responded to Ms Waters’ email of 27 January [422-423] “As I previously wrote in an email to Mr Paul Edwards on Wednesday 25th January 2023, I am raising a formal Grievance against Mr Francis Beaton, Director and the HR team, namely Jacqueline Harrison and Samantha Waters, at Vantiva, Rugby for Bullying, Harassment and Intimidation. I have evidence of such behaviour over a period of three months in total where I have been bullied, harassed and intimidated regarding various incidences since I began my sick leave in late October 2022. Furthermore I need to raise a second formal Grievance against Mr Francis Beaton, Director and the HR team, namely Jacqueline Harrison and Samantha Waters, at Vantiva, Rugby with regards to information requested and withheld from myself, of which I have a contractual right to have been sent a copy as per my terms and conditions of employment, which I signed for when it was requested of me upon my employment. We have evidence of the documents being withheld via a paper trail. It is inappropriate therefore for me to further comment with regard to evidence to yourself as to the detail of these grievances for two reasons, the first being that you are being named in both grievances, it is therefore inappropriate for you to see the evidence and the second being that both grievances are also including your Director, Francis Beaton and your superior Jacqueline Harrison, as they are in fact Manager and Director to you and therefore hold senior positions to you, it is again inappropriate for me to discuss evidence with you. 67 / 107 Therefore I submit a request to Vantiva representatives [sic.], for the second time, who is the point of contact for the hearing of both these grievances.”[311]We return to the grievance at (342). THE LEAD UP TO THE STAGE-ONE ABSENCE MEETING[312]Earlier in the day on 29 January 2023 Mr Seymour also emailed Mr Jarman to decline his invitation to attend the Stage 1 meeting in person on the basis he was still signed off sick by his GP [247-248]. He requested a telephone meeting as an alternative referencing Vantiva’s “Long-Term Sickness Absence Policy”. Whilst that conflates the names of the two policies before us (see (97)) Vantiva’s Long-Term Absence Policy for one permits alternative arrangements where someone is ill [152]. Mr Seymour also raised an issue regarding Miss Water’s presence due to “confidential matters raised which are not appropriate for me to disclose” [247 – 248]. That reliance on the Long Term Sickness Absence Policy is at odds with Mr Seymour stating before us it did not apply.[313]Having discussed matters with HR, Mr Jarman told us it was agreed that Vantiva would not require Mr Seymour to attend in-person but due to the concerns Vantiva had about Ms Chater’s involvement in Mr Seymour’s sickness absence (see (320)) he considered there was a high possibility if it was held by telephone that she would attend without Vantiva’s knowledge contrary to its Long-Term Absence Policy. Mr Jarman told us it was therefore agreed to hold the meeting by Microsoft Teams.[314]Early on 30 January 2023 Miss Waters emailed Mr Seymour under the subject “Private and Confidential - GP Report”:- “Morning Darren, I have not heard back from as to whether you would reconsider consenting to the Company accessing a GP report. Please see attached the letter from Occupational Health. If you have any questions, please do not hesitate to contact me.”[315]A couple of hours later Mr Seymour replied via email [250] “… you have stated you have an OH report, a copy of which I have never been sent, despite my requesting a copy "before it is sent to my employer". I also received an email from Hilary Horton, Enspirita, detailing" There was no Occupational Health report written." The contents have been so noted, passed to my legal representative. With regard to consent, Again, as I've stated many times and also told you the subject was closed, I DO NOT GIVE YOU PERMISSION TO ACCESS MY GP HEALTH RECORD, in part due to the leaks of personal data within Vantiva. 68 / 107 By now you will have received my formal grievance email dated 29th January 2023, Could you please reply at your earliest opportunity with details of the person I need to address the grievance to before I take further action.”[316]Contrary to what Mr Seymour said, Vantiva did not refer to “an OH Report”. Instead it referred to “the letter from Occupational Health”. We address the issue of the OH report and its not being sent to Mr Seymour (see (258-268)) and also in relation to issue [7.1.5] (see (406)).[317]Just under half an hour later Mr Jarman emailed Mr Seymour to re-arrange the stage one long term sickness absence meeting to 3 February 2023 [247 – 248 and 249]. He confirmed this was to be a formal meeting and he arranged it as a teams video call so he could ensure “that only approved / authorised personnel are present for the call.”. Mr Jarman also confirmed the minutes would be taken by Ms Clifton and asked Mr Seymour to “advise ASAP who if anyone would be in attendance from your side?”[318]On 31 January Mr Seymour replied stating his witness/minute taker would be Ms Chater and repeated his request the meeting take place by telephone not video [252 – 253].[319]Miss Waters [SW/42] and Mr Jarman [PJ/18] told us they discussed the request for Ms Chater to accompany Mr Seymour. Miss Waters told us she explained to Mr Jarman that Ms Chater had been very involved previously and ideally Vantiva would want to speak to Mr Seymour without her present so they could have a “productive conversation” with him.[320]Her rationale [SW/41] for that appears to refer back to the view that Ms Chater had been confrontational and obstructive when Miss Waters and Mrs Harrison had spoken to her in October 2022 and at the grievance meeting on 8 November conducted by Mr Beaton (and Ms Clifton). She also argued [SW/41] that as it appeared Mr Seymour was in a vulnerable state that she was worried that Ms Chater had a concerning level of control of Mr Seymour; because 320.1. Ms Chater was refusing to Vantiva staff speak to Mr Seymour directly, 320.2. she appeared to have taken control of his phone and email address, and 320.3. the letter from OH stated that there was a possibility Mr Seymour’s failure to engage in the discussion was “influenced by another” [234].[321]Despite Mr Jarman [PJ/18] taking the view that it was likely Ms Chater would be present during the Stage 1 Meeting if it was held by telephone, he considered that it was more important for him to have a discussion with Mr Seymour by whatever means necessary in order to understand Mr Seymour’s condition and if any adjustments could facilitate his return to work. It was therefore agreed that the Stage 1 Meeting would take place by telephone but that Mr Seymour would be informed again that he could only be accompanied by a representative who met the eligibility requirements in Vantiva’s Long-Term Absence Policy.[322]As a result Mr Jarman wrote to Mr Seymour on 1 February [252]. Mr Seymour replied in turn stating that he would 69 / 107 “… take advice from my legal representative as to the scheduled questions that will be asked of me. As you are forcing me to attend this meeting with no witness I should like that logged in the minutes which will be taken by Ms Clifton and make clear I will not be signing off on these notes until everything that is discussed between us is included.” STAGE 1 ABSENCE MEETING - 3 FEBRUARY 2023[323]The minutes [256 - 257] record the stage 1 meeting went ahead and it was chaired by Mr Jarman with Ms Clifton attending as note taker. It was conducted by telephone and Mr Seymour attended.[324]At the start of the meeting Mr Seymour raised an objection to Vantiva refusing his request for Ms Chater to accompany him and as a result argued he was unable to have a companion. Mr Jarman responded pointing out the fact that Ms Chater did not meet the criteria in Vantiva’s company policy did not prevent Mr Seymour having a representative present. He then asked Mr Seymour to confirm that there was no one else was with him, which Mr Seymour did.[325]Mr Jarman told us [PJ/23] that during the meeting Mr Seymour refused to discuss any part of the letter from OH on the basis that was subject to the grievance he had raised. Mr Jarman was however able to ascertain that Mr Seymour was receiving medication for his anxiety and that, whilst he was still seeing a counsellor, his GP had suggested that he may be able to return to work in March or April 2023 depending upon his progress. As a result Mr Jarman asked Mr Seymour if there were any adjustments which could be implemented to enable him to return to work, such as amended duties. Mr Seymour responded by explaining that he had not thought of any at that time.[326]The minutes record the discussion then turned to Mr Seymour having exhausted his company sick pay entitlement and he was therefore only receiving SSP. In light of that Mr Jarman suggested Mr Seymour be referred to MetLife, and asked if Mr Seymour wished to consider that. Mr Seymour responded saying that was not something he was considering “right now”. Mr Jarman told him if he changed his mind at any time, he could forward the paperwork and it was “there to protect you financially”.[327]Towards the end of the meeting, Mr Jarman explained that the next stage would be for a Stage 2 Long-Term Absence Meeting (a “Stage 2 Meeting”) to be arranged in approximately six to eight weeks “but I’d really like to support you in-between that time if I can, I am here if you would like to talk about any part of the process.” to which Mr Seymour thanked him.[328]Mr Seymour’s view of that offer is embodied by his response to Mr Jarman asking towards the end of the meeting if he had anything else to add – “Vantiva has not helped in anyway regards my mental health from the start, they have just hindered my recovery.” [257]. Mr Jarman responded that he was not aware of the details of what has happened prior to this meeting as he had no involvement but continued “all I can say is that I am here to support with your recovery if you want and allow me to do so, both you and your skills are missed and we want to get you back in work.” 70 / 107[329]The meeting ended with a discussion about the process for the approval of the minutes.[330]That was the last meeting Mr Seymour attended.[331]Given Mr Seymour had indicated he might be able to come back to work in March or April and that was only a month or so hence, Miss Waters told us [SW/43] after the meeting she discussed with Mr Jarman if they should wait to see what happened and decide how to proceed at a later date.[332]She told us that whilst Vantiva would consider holding welfare meetings/general check in calls with someone on long-term absence, due to difficulties created by Mr Seymour’s ongoing grievances it was decided not to do so.[333]As to the delays in the process by that point and Mr Jarman’s decision to wait, the time frames in Vantiva’s policy are described as a guide. We find that the delays were as a result of the difficulties Vantiva had encountered progressing matters that we set out above. Further we find it was a reasonable decision for an employer to hold the meeting at that point and it was also reasonable to decide to wait before scheduling a second meeting.[334]Even if our finding concerning the Long Term absence policy not being contractual is wrong (see (304 - 306)), that does not mean that the process Vantiva went through thereafter is void. Mr Seymour attended the meeting and as Mr Rhodes indicated if that were so, the absence of a policy would mean an employer could not dismiss for long term absence which we agree is clearly wrong, both at common law and by reference to the statutory scheme around unfair dismissal.[335]As to the harassment and reasonable adjustments complaints concerning that meeting they were argued in closing as :- 335.1. Mr Seymour perceived the meeting “to be a hostile environment, alone, where he felt intimidated, which in turn caused his mental health to deteriorate further which led to his [REDACTED] and as a result and 335.2. as an adjustment Vantiva should have permitted his advocate, Ms Chater, to accompanying him[336]We find that the purpose of holding the meeting was not to violate Mr Seymour’s dignity or to create the other proscribed consequences but the reasons Mr Jarman gave that we summarise at (288). We find the starting point that Vantiva adopted on each occasion was that its policy with regards to companions applied and on each occasion it decided whether to follow it. That it reviewed the issue on each occasion is reinforced in our judgment when Vantiva sought to give a reassurance on 9 June [282 - 283] (see (414)).[337]Mr Seymour does not address how he perceived the environment was hostile or the other prescribed circumstances in his witness statement. Instead, the focus in his witness statement is on the upset it caused him that Ms Chater was not permitted to accompany him to what was a remote telephone meeting. Having referred to the OH assessment on 20 December in the preceding paragraph of his witness statement Mr Seymour continued:- 71 / 107 “16. I don't remember much or the order that the stuff came in after that. My medication was given to me and stuff to sleep more. I remember talking to Richard Hope, Director and Paul Jarman, Operations Manager, in phone meetings. Shaz wrote things down for me because I could not think straight. I don't really remember the questions. I remember getting very upset that Shaz wasn't allowed to be in the room with me for the Paul Jarman meeting, but she stayed close by in a different room and I could see her and talk to her by message. She talked to me and wrote down things for me so I didn't forget.”[338]We find that Vantiva in requiring that Ms Chater did not attend the meeting it was applying its policy not to allow companions other then work colleagues, union or Your Voice officials[339]We find it was reasonable in the absence of countervailing medical evidence and the concerns Vantiva had in the light of Ms Horton’s report about the influence Ms Chater had on Mr Seymour to require Mr Seymour to attend what was a telephone meeting alone. We find that viewed objectively in the light of those circumstances and absent that medical evidence that it was neither the purpose nor effect of that requirement that the circumstances proscribed by s.26 were created.[340]Given our findings at (336 - 336) that harassment complaint fails. We address the remaining elements of this complaint concerning a breach of the duty to make reasonable adjustments starting at (487) below.[341]On 24 February 2023 Mr Seymour provided a MED3 Sick Note dated 24 February 2023 for one month [339] giving the cause of the absence as “Work related stress” but again making no reference to adjustments. THE GRIEVANCE OF 16 FEBRUARY [459][342]Ms Chater told us [SC/21] that in early February 2023 Mr Seymour’s counsellor asked to see her and explained (with Mr Seymour’s permission) some of the things Mr Seymour had spoken about in therapy sessions. She told us the counsellor indicated amongst other matters that it might help Mr Seymour if what Mr Seymour described as the bullying behaviours at Vantiva could be addressed. As a result of the discussion she spoke to Mr Seymour and he agreed to raise another grievance. To that end Ms Chater also explained to the Tribunal that someone she had known professionally helped answering emails.[343]It appeared to us that save in one respect Mr Seymour had raised “grievances” about most of the same points before then (see (308, 310 & 315) and that what Mr Seymour was actually seeking to do was to appeal against the grievance appeal outcome. The new complaint was about the result of the OH appointment on 20 December.[344]Mr Seymour subsequently relayed those points in two emails of 2 & 6 February [430- 431 & 429]. They were referred to Mr Richard Hope to determine. 72 / 107[345]As neither that grievance process nor Mr Hope’s grievance outcome form part of the complaints before us again we do not intend to dwell on this save to briefly record what happened as best we can.[346]Mr Hope held a grievance meeting with Mr Seymour on 16 February 2023 (we were not referred to any notes them and can find no trace of them in the bundle).[347]In his outcome [438-452] Mr Hope summarised Mr Seymour’s complaint as a formal Grievance against Mr Beaton and the Vantiva Rugby HR team, namely Mrs Harrison and Miss Waters 347.1. for Bullying, Harassment and Intimidation 347.2. with regards to information requested and withheld from him, which he asserted a right to have and 347.3. with regard to two conflicting OH Reports.[348]Mr Seymour received the outcome from Mr Hope on 9 March 2023 [438-452]. Essentially Mr Hope determined:- 348.1. as to point 1 - “I have not found any evidence (and you have not provided evidence of) actions that on the balance of probabilities constitute bullying, harassment and/or intimidation as alleged” [446] 348.2. as to point 2 - “As detailed above and following legal counsel, I do not consider that there has been any breach of data protection legislation and therefore, there was no requirement to take further action. Your data was processed in a legitimate manner, namely to assess your (then) current state of health and working capacity.” [450] 348.3. as to point 3 - “I did not find any evidence that there are two Occupational Health reports, or of any falsification in relation to the account of the meeting. The only document Vantiva received was the letter dated 20th December 2022 which was sent to you on 30th January 2023. The report is the responsibility of the provider Enspirita Ltd, and the meeting was a private one between you and their practitioner Hilary Horton and as such any inaccuracies, discrepancies or issues are to be addressed with Enspirita Ltd which you have advised us you are following up on.”. He also refused a request that the data contained in the OH report be erased. [451][349]Mr Hope refused to uphold the Grievance and also decided to take no further action in relation to points 1 & 2 but did recommend that a supplier review be a carried out in relation point 3.[350]Ms Chater told us [SC/21] as result Mr Seymour was very upset and refused [REDACTED]. He also refused to attend [REDACTED].[351]Mr Seymour appealed Mr Hope’s decision. This was referred to Mr Sheen. Again the appeal letter was not before us but Mr Sheen told us [JS/7] he received Mr Seymour’s email appealing the grievance outcome on 10 March 2023. We return to this at (359) below. 73 / 107[352]On 20 March 2023, Mr Seymour emailed Mr Jarman seeking a copy of his contract of employment. He told us he emailed Mr Jarman because of his concerns about the HR team [260].[353]Mr Seymour told us that email (of 20 March 2023) was the last from him personally to Vantiva until after the events that concern us took place (see also (415 & 433)). STAGE 2 ABSENCE MEETING[354]On 22 March 2023 Mr Jarman emailed Mr Seymour to inform him that he wanted to hold a Stage 2 Meeting in order to discuss his current condition and whether any adjustments could be implemented to facilitate his return to work [269]. He asked Mr Seymour to provide a date when he was free, on receipt of which he would send him an invitation letter.[355]Mr Jarman’s rationale for proceeding to the stage 2 meeting at that point was that the MED3 sick note Mr Seymour had provided towards the end of February (see (341)) was due to expire on 24 March and whilst Mr Seymour had indicated during the Stage 1 Meeting at the start of February that he may be able to return to work in March or April, he had not told Vantiva in the interim he would be doing so [PJ/30].[356]In context of being asked about the 22 March email Mr Seymour told us he couldn’t “remember a lot after stage 1 meeting” (see also (392)).[357]On 24 March 2023 Mr Seymour provided a further MED3 Sick Note dated 24 March 2023 for the period to 23 April 2023 [340] again stating the cause of the absence as “Work related stress” and again making no reference to adjustments.[358]On 27 March 2023 Ms Chater (via Mr Seymour’s email address) emailed Mr Jarman explaining that Mr Seymour was not in a fit state to reply to emails or attend any meetings, that she had requested a letter from his GP which would explain his current condition and ongoing prognosis and this would be forwarded to the Vantiva when it was received [268-269]. APPEAL AGAINST THE OUTCOME OF THE 16 FEBRUARY GRIEVANCE[359]Save in relation to the complaint of harassment against Mr Sheen at issue [7.1.8] no other complaint about the handing or outcome of the appeal itself is made in either claim about the grievance appeal. The appeal against second grievance outcome was not referred to before us (and we can find no trace of it in the bundle). What Vantiva said this about it in its (original grounds of resistance and) the amended grounds of resistance [49 & 99] addresses what it included:- “On 10 March 2023, the Claimant appealed the outcome to Justin Sheen, European Supply Chain Planning Director. The Claimant did not set out any grounds of appeal but merely forwarded his previous grievance that had been sent to Mr Hope on 2 February, stating that there was no need for further discussion as the evidence speaks for itself and he was not expecting the grievance to be dealt with fairly due to the bias he believed exists within the Respondent.”[360]In his subsequent outcome [453-459] Mr Sheen summarised the process he adopted and how he sought to clarify the basis for Mr Seymour’s grievance appeal:- 74 / 107 “Following the receipt of your grievance outcome on 9th March 2023, you contacted me on 10th March 2023 to confirm your intention to appeal this decision, attaching several documents. On 13th March 2023, I requested further information from you namely your reasons for appeal. You responded on 14th March 2023 stating that you felt that you had been subjected to “unfair bias” and that the paper trail sent on 10th March 2023 proved this. On 15th March 2023, I, requested more information regarding your appeal and sought clarification from you as to how the documents provided supported your appeal. You responded on 15th March 2023 stating that you “disagreed] with the total outcome of the grievance” and asked if I was “accepting your appeal or declining it.” As per my email on 17th March 2023, I confirmed that I was not disputing your right to appeal but highlighted that at this stage you had not yet set out your grounds for appeal by 20th March 2023. I further prompted on 22nd March 2023 for the above information and extended the appeal window to 27th March 2023. Upon receipt of your email on 27th March 2023, you outlined your reasons for appeal and therefore, I proceeded to schedule an appeal hearing with you on 6th April 2023 (this was sent in my email dated 3rd April 2023). Following no response to this invite, I sent another email on 6th April 2023 to reschedule the meeting to 13th April 2023. You informed me on 11th April 2023 that your ongoing medical condition had deteriorated, and you could not attend any form of meeting. Due to this, on 20th April 2023 I responded with the questions I would have asked you in the appeal hearing. As I had not had a response from you within the suggested timeframe, I consequently sent you another email on 28th April 2023 to request a response to my questions. On 8th May 2023, you responded to state “The contents of your email dated 28 April 2023, have been noted, however despite the answers being submitted to your previous questions, you continue to ask for further. We have supplied strong paper-based evidence and therefore this is all we have to submit.” Accordingly, you did not provide any replies to the questions asked. As advised in my response on 11th May 2023, I continued my investigation into your appeal based on the information you provided. Despite being advised you could do so, you did not provide me with any further information and therefore, my findings in relation to your appeal are based on the information you have provided and a review of the information which was collated as part of the original grievance investigation. In addition to your grievance appeal, by email dated 27th March 2023, you confirmed that you wished to raise a further grievance which was ‘against Vantiva Rugby and their employees/ representatives thereto, for harassment relating to my disability including bullying under the Equality Act 2010. My mental health has a substantial, adverse and long term impact on my ability to carry out 75 / 107 my day to day life, therefore is classed under the Equality Act 2010.’ On 3rd April 2023, and 6th April 2023, I requested further information regarding this grievance, specifically the alleged acts of disability harassment. However, you did not provide any further information. I have therefore considered your grievance in the context of whether you have been subjected to harassment and/or bullying – a concern which you raised as part of your grievance submitted to Richard Hope on 2nd and 6th February 2023.”[361]The invitation email of 3 April was at [265 to 266] and the further email of 6 April rescheduling the grievance appeal hearing for 13 April 2023 at [264 to 265].[362]In both emails of 3 and 6 April 2023 Mr Sheen gave Mr Seymour the option to hold the meeting either at Vantiva’s Rugby or Barsan sites or to hold the appeal meeting via Microsoft Teams instead. In each email Mr Sheen also confirmed he would be happy to adjust the normal rules regarding a companion to allow Ms Chater to accompany Mr Seymour if he felt it would be beneficial as she had previously accompanied him. He placed the caveat on that in each email:- “As with the grievance meeting, Ms. Chater may consult with you as part of the meeting but cannot answer questions on your behalf. If you would like to be accompanied, it remains your responsibility to ensure that your companion is able to attend (and access) the meeting.” HARASSMENT - 7.1.8 JUSTIN SHEEN STATING IN AN EMAIL OF 6 APRIL 2023 [264] THAT IT WAS C’S RESPONSIBILITY TO ENSURE THAT HIS REPRESENTATIVE COULD ACCESS THE GRIEVANCE APPEAL MEETING.[363]Mr Seymour told us he did not remember seeing the second email from Mr Sheen. That said Mr Sheen told us that on 11 April, he received a response from Ms Chater on behalf of Mr Seymour in which she stated Mr Seymour was not able to attend meetings or discuss by telephone although she had “noted” his offer of alternative venues and also his reference to “access”.[364]Ms Chater describes Mr Sheen’s involvement thus:- “21. … he did everything, he could to hold up the process, with constant questions and Darren's counsellor told me to stop asking Darren questions as Darren's Mental Health was taking a downturn. I did however feel personally offended by an email sent by Justin Sheen, in which he referenced that it was Darren's responsibility to [REDACTED].[365]Mr Seymour asserts the extract we emphasise at (362) was inappropriate and harassment due to Ms Chater’s [REDACTED]..[366]In his witness statement [JS/15] Mr Sheen points out that at the time of sending the emails on 3 and 6 April he was not aware that Ms Chater suffered from any disability 76 / 107 and it was not until a conversation he had with Vantiva’s solicitor on Monday 4 November 2024 that he became aware that Ms Chater was a person with a disability and/or [REDACTED] at the time of him sending the relevant emails. He told us [JS/15] it was therefore not his intention to place any responsibility on Mr Seymour to overcome any issues Ms Chater may have had [REDACTED].[367]Having re-read his emails, he also told us he remained of the opinion that the most common sense reading would be to interpret the reference to access related to the offer of a virtual meeting. We took him to mean by that having access to a PC, laptop or other means to access Teams including stable Wi-Fi so she could join remotely. He told us he remained unclear why Mr Seymour or Ms Chater inferred that he was making a remark aimed at Ms Chater’s [REDACTED] when he had never met Ms Chater, nor did he have any reason to believe she would have difficulty [REDACTED].[368]Mr Sheen also pointed out that that at no stage through the grievance appeal process did Mr Seymour and Ms Chater 368.1. make any attempt to communicate to him the difficulties Ms Chater would have [REDACTED] at any time [JS/16] or cite Ms Chater’s disability as a barrier to attending a meeting [JS/17], or 368.2. meet with him, virtually or otherwise [JS/17].[369]He told us the reason given for Mr Seymour and Ms Chater being unable to meet with him was Mr Seymour’s mental health [JS/17].[370]In cross examination Mr Seymour conceded that at the time of Mr Sheen’s email of 6 April 2023 Mr Sheen had met neither Mr Seymour nor Ms Chater.[371]As we say at (37.1) immediately prior to the commencement of the second part of the hearing on 5 October Mr Seymour withdrew this complaint albeit noting :- “… the purpose of Justin Sheens email of 6th April 2023, in our opinion was to offend the Claimants Representative, although this was denied by the Respondent. However, the Claimant and his Representative are willing to rise above this comment and put it down to the pervasive poor attitude of Technicolour against persons whom have a level of disability. This has been conceded in the spirit of saving the tribunal precious time.”[372]As we also say above given that complaint was withdrawn Mr Sheen was not called.[373]The withdrawal of the complaint aside, in our judgment that concession would have cast significant doubt on how disability could be a factor behind the comment. Further, having accepted that he did not remember seeing Mr Sheen’s email of 6 April 2023 at the time the email was sent Mr Seymour did not address how that could have had the proscribed effects such that viewed in the round how the subjective threshold for harassment was met (irrespective of the objective test).[374]For completeness we should add the appeal in relation Mr Seymour’s second grievance was not upheld by Mr Sheen. His outcome of 9 June 2023 was at [453]. 77 / 107 THE ABSENCE PROCESS (CONT.)[375]In response to Ms Chater’s email of 27 March 2023, Mr Jarman emailed Mr Seymour on 12 April 2023 asking if he still felt too unwell to attend a meeting [269]. Mr Jarman explained that the purpose of the Stage 2 Meeting was to receive an update on his current condition, whether he was still continuing to make progress and also to discuss any adjustments he might require to assist his return to work.[376]On 17 April 2023 Ms Chater replied to Mr Jarman (again stating this was on Mr Seymour’s behalf) referring Mr Jarman back to her email of 27 March 2023 and stated that she was still awaiting a letter from Mr Seymour’s GP [268].[377]Mr Jarman told us [PJ/32] he felt it was clear from Ms Chater’s email of 27 March 2023 that it would be difficult to have a discussion directly with Mr Seymour at that time so he discussed with HR alternative ways to obtain the information Vantiva required from Mr Seymour in relation to his condition, the likelihood of him being returning to work and if so when that would be and if any adjustments would facilitate this. He told us that whilst the Long-Term Absence Policy required a Stage 2 Meeting to be held with an employee, as it did not appear that Mr Seymour was well enough to attend a Stage 2 Meeting, he decided to offer to provide him with the questions that would have been asked during the Stage 2 meeting by email.[378]Miss Waters told us [SW/44.3] that whilst Vantiva remained concerned about Ms Chater’s involvement Vantiva adjusted their process to accept communication from her, because it appeared that this would be the only way Vantiva would receive any communications. Vantiva therefore responded to Mr Seymour via the same email address (see [268, 269, 272, 275, 278 to 279]).[379]Miss Waters also told us [SW/44.4] that she assisted Mr Jarman writing those questions as it was important to ensure that Mr Jarman obtained all the information that he would need to make informed decisions about Mr Seymour’s employment and his return to work.[380]At just shy of 8:00 am on 19 April 2023 Mr Jarman emailed the questions that he would have asked had the stage 2 meeting taken place to Mr Seymour and asked Mr Seymour to provide his answers by email [270 - 271] (we address the contents of Mr Jarman’s email in more detail at (382)). Given the concerns Mr Seymour had raised regarding the report from Ms Horton/Enspirita Limited he also asked if Mr Seymour would be willing to either: 380.1. attend an OH assessment with an alternative provider; and/or 380.2. provide his consent to enable Vantiva to contact his GP.[381]Also, on 19 April 2023 Mr Seymour commenced ACAS conciliation. In the absence of any other factors being referred to in evidence as being at play we find that the trigger for him doing that when he did was Mr Jarman’s email of 19 April 2023. HARASSMENT - 7.1.7 TRYING TO ACCESS C’S MEDICAL RECORDS BY WAY OF REPEATEDLY OFFERING “ METLIFE”, COMPANY INSURANCE SCHEME IN EMAILS FROM PAUL JARMAN ON 19 APRIL 2023, 5 MAY 2023 AND 9 MAY 2023;[382]In his email of 19 April Mr Jarman said this :- 78 / 107 “… As I outlined in my email however, we have reached the Stage Two period of your absence. I understand that you have said you are not feeling well enough to hold a meeting. Therefore, I would be grateful if you could answer the questions below which I would have asked you in the meeting. … Stage 2 Meeting - Questions RE - Medical Intervention• I am aware that you attended an Occupational Health meeting with Hilary Horton from Enspirita on 20th December 2022. Given that your absence is still ongoing, and as you suggest in your email, worsening, I would like to take the opportunity to suggest you engage with a different Occupational Health provider. Would you consent to this?• At this stage it is to my understanding that you have not consented to us contacting your GP. I appreciate you are planning on sending me a GP report. Would you consent to us writing to your GP with some specific questions regarding your condition?• Without this, or further engagement with a different Occupational Health Provider, we may have no choice but to make any future decisions with regards to your ongoing employment without medical advice, which may be at your detriment. …. RE - Sick Pay and MetLife• It is important at this stage to advise you that your 28 Weeks Statutory Sick Pay is due to expire on 8th May 2023.• We have previously highlighted one of your Company Benefits, MetLife, or Group Income Protection, and advised that you would need to consent for the Company to refer you to them. At this stage, you have continued to decline this offer. Due to the near expiration of your SSP, I would strongly advise that you reconsider this as it is a valuable long-term sickness benefit. I have attached the information sheet for MetLife to this email and I suggest that you review this and inform me within the next 5 working days whether you would like me to arrange your referral.[383]Miss Waters explained the nature of the MetLife policy was two-fold:- “45.1 An early intervention and rehabilitation scheme [149 – 150]. This is designed to assist an employee who is on sick leave by 79 / 107 supporting them. This works a little like Occupational health, in that MetLife will draw up a plan with the employee about any support they require from us, as the employer, a copy of which is sent to us to implement. … 45.2 An income protection policy which insures our employees against loss of income due to sickness absence. This benefit is free to employees and is usually utilised once an employee’s company sick pay and SSP has expired. This is why we were keen to draw this benefit to Darren’s attention during April and May to try and mitigate any financial loss he would suffer as a result of his SSP expiring on 8 May 2023.”[384]On 26 April 2023 Ms Chater emailed to Mr Jarman via Mr Seymour’s email address [272] a MED3 sick note dated 24 April 2023 [337] together with a letter from Mr Seymour’s GP dated 20 April [350] stating his current condition and prognosis. The MED3 lasted until 23 May 2023 and stated the cause of his absence was “Work related stress” but again no reference to adjustments that might benefit Mr Seymour was made.[385]Miss Waters told us [SW/44.4] that in her view the letter from Mr Seymour’s GP letter dated 20 April did not provide any detailed information to make informed decisions about Mr Seymour’s employment and his return to work (see (379)).[386]Mr Seymour accepted that whilst the GP letter stated his condition was likely to remain for the foreseeable future and potentially become a long term condition, it did not give a date when he would likely to be able to return to work or any identify any adjustments that would facilitate that.[387]Mr Jarman acknowledged receipt of the MED3 certificate and the GP letter on 5 May 2023. He also raised that he had not received a response from Mr Seymour if he wanted to be referred to MetLife for Group Income Protection [273 – 274] and asked for that response by 8 May 2023. He also repeated his request for Mr Seymour to provide his responses to the questions contained in his email of 19 April 2023 and repeated them.[388]The same day, 5 May 2023, ACAS conciliation ended.[389]On 8 May 2023 Ms Chater emailed Mr Jarman via Mr Seymour’s email address to state it would be inappropriate for her to answer his email as it was now “in the hands of the Tribunal Service”. That is technically not correct as a tribunal claim was not presented until 4 June 2023 [2-26]. In addition, she referred Mr Jarman to Mr Beaton, who she alleged was aware of the situation [275].[390]On 9 May 2023, Mr Jarman emailed Mr Seymour [276-277]. He took Ms Chater’s comment about the matter being in the hands of the Employment Tribunal at face value and explained that whilst Mr Seymour had made a claim to the Employment Tribunal, he remained an employee of Vantiva and therefore, it was necessary to for him to comply with its policies and procedures, including its Long-Term Absence policy. To that end he 80 / 107 390.1. repeated the offer for Mr Seymour to engage with a different OH provider and sought Mr Seymour’s consent to this, 390.2. sought consent for Vantiva to write to Mr Seymour’s GP with some specific questions regarding his condition, 390.3. explained that without either of the above Vantiva may have no choice but to make future decisions with regards to Mr Seymour’s employment without medical advice, and that might be to Mr Seymour’s detriment, 390.4. asked if Mr Seymour would like to proceed with a referral to MetLife, and 390.5. asked Mr Seymour to address the questions from his emails of 19 April 2023 [270 - 271] and 5 May 2023 [273 to 274] regarding his condition and returning to work, which he again repeated.[391]On 10 May 2023 Ms Chater responded on Mr Seymour’s behalf [278 - 279]:- 391.1. stating Mr Seymour was incapacitated by his Mental Health and she answered on his behalf with the information at her disposal, 391.2. stating that a referral to MetLife had been refused twice previously and was now refused for a third time, 391.3. declining the suggestion that Mr Seymour visit another OH provider, repeated the allegation that the previous OH reports/letters were falsified or withheld with the aim of being detrimental his employment, asserted it would not be in his best interests to do so and argued that it would be detriment to his health, 391.4. refusing access to Mr Seymour’s medical records or the obtaining of his medical information through questioning of his GP “UNDER ANY CIRCUMSTANCES”, 391.5. requesting that Vantiva refrain from continuing to refer to this matter, that the requests were harassing on the basis Vantiva had been told “NO and that the SUBJECT IS CLOSED, on many occasions”, and 391.6. referencing with regard to the questions concerning his current medical position the earlier GP letters and emails from her, including her email of 22 March 2023 (in which she advised that Mr Seymour’s condition had worsened, but there had been little change to date) but also indicating that Mr Seymour’s ongoing treatment was private. As to the questions regarding return to work she stated that was “unknown as I cannot discuss with Darren at the current time”,[392]Mr Seymour was asked in cross examination about this document and responded that he was ”Not aware of correspondence from March to my dismissal” and he didn’t “remember much at the time – I never saw them” (see also (356)).[393]As we state above Vantiva’s Long-Term Absence Policy suggests that a referral to MetLife be discussed with employee at each stage of the process. Mr Jarman told us [PJ/41] that the sole reason he raised referring Mr Seymour to MetLife was that Mr Seymour’s SSP was due to expire on 8 May 2024 and he wanted to give Mr Seymour the opportunity to access the income protection benefit. He stated that he was not 81 / 107 using the referral as a means to access his medical records. He maintained he did not and does not believe that is even possible.[394]Before us Mr Seymour accepted 394.1. that he was not aware of the contents of the email from Mr Jarman of 5 May 2023 until after his dismissal at the earliest, 394.2. that the MetLife consent form related to consent for the treating doctor to provide a medical report, not for Vantiva to be given access to Mr Seymour’s medical records, 394.3. that Mr Jarman was offering rather than compelling him to go to an alternative OH provider and that it was reasonable for Mr Jarman to do so, 394.4. it was reasonable to offer him the ability to respond to the questions asked as an alternative, and 394.5. it was also reasonable of Vantiva to want to ask the questions of his GP direct (whereas Mr Seymour wanted the questions to be posed via him rather than direct as he was concerned that was an attempt to access his medical records).[395]Again, Mr Seymour made clear that with regards to MetLife and the contact with his GP the way he read them at the time was that Vantiva wanted to be given access to his medical records. He accepted that viewing them now that was not so. Whilst we accept that was how Mr Seymour felt at the time the MetLife consent form at section G [502] made clear that as with any medical report, Mr Seymour was able to view and seek to amend any report before it was sent to Vantiva.[396]We find irrespective of those concessions that Vantiva was not seeking access to Mr Seymour’s medical records but for the MetLife doctor to have access to them so s/he could provide a medical report and/or it could write to his GP direct.[397]We find that the event complained of that formed the basis of this complaint did not happen as alleged. In any event Mr Seymour was not aware of those events at the time and so the proscribed consequences for harassment could did not arise. In any event viewed objectively they were reasonable requests. For all those reasons that harassment complaint must fail.[398]On 24 May 2023 Mr Seymour emailed Mr Jarman on a ‘without prejudice’ basis, [280 – 281]. It was agreed between the parties that this and subsequent emails be included in the bundle. Mr Seymour’s email of 24 May 2023 summarised his version of the events leading up to that point including that “Vantiva have previously been advised … Darren has a serious condition of Severe Depression and Anxiety that is severely impacting of his life and his ability to deal directly with matters pertaining to his employment, as this is as a direct result of Vantiva's actions and is likely to remain so going forward. It puts Darren at a disadvantage that he is unable to deal mentally or reply to any matters pertaining to his employment, as he is unable to speak for or 82 / 107 defend himself due to the mental anguish and effect on his mental health going forward.”[399]It requested the following adjustments:- 399.1. that Ms Chater represent him in all matters regarding his employment with Vantiva, including telephone conversations, e-mail, meetings or communication of any kind; and 399.2. He be given voluntary redundancy and ‘reasonable recompense for his loss of earnings’ to ‘resolve the alleged sexual harassment allegation’[400]Amongst other reasons raised by Ms Chater on Mr Seymours’s behalf in support of that contention was that “This adjustment will allow Darren to settle outstanding issues with Vantiva and aid his mental stability” and it identified those outstanding issues as including the “… ongoing [REDACTED] and Darren's long absence”[401]Vantiva asserts this is the first time adjustments were specifically requested as such.[402]The request for voluntary redundancy was a repeat of a request Mr Seymour first made on 8 November 2022 at the grievance meeting with Mr Beaton (see (164)).[403]Mr Jarman explained [PJ/44] that he did not consider that it would have been reasonable for Vantiva to have offered Mr Seymour voluntary redundancy as his role was still required. He also referred to a subsequent email from Mr Beaton dated 25 June 2023 [332] setting out the nature of Mr Seymour’s role and how it had been covered in his absence (see (434)).[404]At the same time Mr Seymour provided a MED3 Sick Note dated 24 May 2023 lasting for one month [341]. Again the reason given was “work related stress” and no adjustments were suggested.[405]Upon receipt of the email of 24 May 2023 Mr Jarman told us [PJ/43] that he forwarded it to Mrs Harrison and it was agreed that she would respond on behalf of Vantiva. We set out her reply at (414). HARASSMENT - 7.1.5 PAUL JARMAN REQUESTING C TO ATTEND A DIFFERENT OCCUPATIONAL HEALTH ASSESSMENT AFTER C RAISED CONCERNED WITH R ABOUT TWO CONFLICTING/FALSIFIED REPORTS BY ENSPIRITA LIMITED;[406]This relates to Mr Jarman’s offer an alternative OH assessor within his emails of 19 April & 9 May 2023[407]In closing Ms Chater sought to explain that this allegation was viewed as harassment by Mr Seymour because “he had already attended one OH appointment which resulted in intimidation and humiliation by Francis Beaton and Dwayne Lovatt at the entrance to the appointment”. She also referenced 407.1. the “conflicting and disputed OH reports/letters”, 407.2. the failure to follow procedure in that “private information was sent to Sam Waters, HR, who was at the time under Grievance and therefore it should not have been sent”, 407.3. that “the reports/letters were full of inaccuracies” and 83 / 107 407.4. Mr Seymour was not sent a copy of the OH letter prior to it being sent to Technicolor despite having sought that when agreeing to the report.[408]She also argued that the sickness absence policies did not state that multiple visits to the OH were required and Mr Seymour “felt further intimidation and degrading would be to the detriment of his mental health and viewed this request as a repeated intimidation.”[409]Again, this argument went beyond the issues identified. It appears to conflate a complaint about Mr Jarman’s actions at one point and the actions of Mr Beaton and Miss Waters at others. We address the issues concerning Mr Beaton, Miss Waters and the OH letter above at (237 & 240), (254 - 257) and (262 - 265) respectively. As to the inaccuracies referred to these were not detailed so we are not in a position to address[410]As to the complaint that was before us, in his oral evidence Mr Seymour accepted that that Mr Jarman was offering rather than compelling him to go to an alternative OH provider and that it was reasonable for Mr Jarman to do so (see (394.3)). Mr Seymour’s evidence did not address how the offending email had the proscribed effect (he was not aware of the correspondence by that point) and accepted that it was not reasonable for it to have the proscribed effect.[411]We find that Vantiva was seeking an OH report for the reasons we give at various points above and its purpose was not to harass Mr Seymour. Further, Mr Seymour did not perceive that as harassment at the time because on his own admission he was not engaging with the correspondence (see (356 & 392)). Further, viewed objectively and taking into account all the circumstances we find that was not harassment as indeed Mr Seymour accepted.[412]That complaint also fails for those reasons. THE FIRST TRIBUNAL CLAIM[413]Mr Seymour presented his first claim to the Employment Tribunal on 4 June 2023 [2- 26].[414]Mrs Harrison replied on 9 June 2023 [282 - 283] to Ms Chater’s without prejudice email of 24 May 2023 (see (398 - 400)). She explained amongst other matters:- 414.1. “In the event that Darren is required to attend meetings in the future, if he requests your attendance as his accompanying person, it is unlikely to be problematic” 414.2. the investigation into Mr Seymour’s conduct was still outstanding but had not been progressed due to him being unwell. In light of his request to resolve the investigation and to accommodate Mr Seymour’s ill health she said Vantiva would send him a list of the questions to answer instead of holding an investigation meeting, and 414.3. that voluntary redundancy was not a reasonable adjustment as the purpose of a reasonable adjustment was to assist Mr Seymour getting back to work, not to terminate his employment. 84 / 107[415]On 12 June 2023 Ms Chater emailed Mrs Harrison [285] stating that the reasonable adjustments requested had not been agreed, that whilst Vantiva stated that she may accompany Mr Seymour they had not agreed that she could speak on his behalf, that Mr Seymour was not able to speak about or communicate with Vantiva with regard to any work related matters on ANY level due to his Mental Health issues at that time, that Vantiva “must wait until such a time as he is able to do so” and “as you have failed to recognise me, I withdraw from opening or replying to any Email or Letter communication from Vantiva.” She continued by stating her primary consideration was Mr Seymour’s well being and “Vantiva has forced me to make this decision due to your reply.” She concluded by stating the Tribunal claim had been commenced.[416]Mrs Harrison responded to Ms Chater’s email on 21 June 2023 [375 – 376] 416.1. reiterating the position regarding voluntary redundancy, and 416.2. stating that whilst Mr Seymour had attended various meetings, he had not personally emailed the Company since 20 March 2023, that all subsequent communication had been sent by Ms Chater on his behalf and there were certain matters that Vantiva needed to communicate with Mr Seymour about given he remained its employee.[417]Ms Chater questioned the authenticity of Mrs Harrisons email of 21 June 2023 as she alleges she did not receive it. Neither Ms Chater nor Mr Seymour led evidence of that in their witness statements.[418]Mrs Harrison was challenged by Ms Chater on the issue in cross examination by enquiring where the read receipt for the email was. Mrs Harrison indicated one had not been sought when it was sent. It was put to her that she had no way of knowing the email had been received, which she accepted. She was not asked if it had been returned undeliverable. In her witness statement Mrs Harrison stated it was sent in the same way as any other email and that she had taken a screenshot of the sent email which could be provided on request.[419]As that was not an issue raised in Ms Chater or Mr Seymour’s witness statements nor one of he issue in the list of issues there was no obligation on Mrs Harrisson to provide the screen shot.[420]Again this was not a specific issue before us. Given this was raised we record there was no dispute that the email was sent to Mr Seymour’s usual email address. As such, in the absence of a message indicating the message had failed to send are entitled to infer it was sent and received. That being so the burden was on Ms Chater to show it was not received. She did not challenge Mrs Harrison about it being returned undelivered. We find on balance it was sent.[421]That view is reinforced by Ms Chater having told us [SC/27] that other than for a brief time in October 2023, and that was for the purpose of his appeal against his dismissal after the 12 June 2023, she did not open any email, letter or enter into any communication with Vantiva (and that included answering phone calls (see also (356 & 392)).[422]With regard to Mrs Harrison’s offer to put the questions that would be asked as part of the disciplinary investigation to Mr Seymour in writing (see (414.2)) Ms Chater asked 85 / 107 Mrs Harrison why those questions had not been asked previously (in the same way as questions were posed to Mr Seymour as part of the absence management process.[423]Mr Rhodes raised that any complaint about the failure to deal with the disciplinary investigation by questions being asked of Mr Seymour rather than an in person meeting should have been raised as an issue in the same way that questions were raised in relation to his absence and the failure to do so meant questions had not been asked of him, thereby prejudicing Vantiva. That was reinforced by the absence of Mr Johnson.[424]Further as Mrs Harrison pointed out it was Mr Johnson and Miss Waters who were dealing with the disciplinary issue and as the judge explained to Ms Chater the question should have been put to Miss Waters and not Mrs Harrison if she was seeking to argue it should have been done earlier and she had not done so.[425]Those points aside Ms Chater’s suggestion is at odds with what she and Mr Seymour agreed at the grievance meeting on 8 November 2022. Having explained at that meeting the disciplinary investigation would not continue at that point due to Mr Seymour not being in work, Mr Beaton stated that the grievance would take priority, interviews with those named and with Mr Seymour would need to take place at some stage and Vantiva would need to have another meeting with him.[426]Mr Beaton then asked “are you well enough for this to take place face to face or are you more comfortable with this being over teams?” The reply came back “As long as this is not with JH then we are happy for any further meetings to be face to face.”.[427]Thus, contrary to what Ms Chater and Mr Seymour now suggest should have occurred, at the time of that meeting they expressly agreed to attend a face to face meeting (see (163)).[428]Clearly circumstances can change but so far as we can trace Ms Chater’s letter of 24 May 2023 is the first time that issue was specifically raised on Mr Seymour’s behalf and by that time the investigation had been on hold for nearly 8 months,[429]The offer to put questions to Mr Seymour as an alternative to being asked to attend absence meetings was made at the end of March (see (377 - 378)) because in Vantiva’s view “it appeared that this would be the only way [it] would receive any communications about him”.[430]As Mrs Harrison was not involved in the disciplinary process we find it is unsurprising she did not offer to do that at the end of March. We find she did so because Ms Chater had raised the impact that the delay in the disciplinary process was having on Mr Seymour’s mental health in her letter of 24 May 2023.[431]The issue having been raised, Mrs Harrison made the offer. It is difficult to criticise Vantiva for not offering to do that sooner given :- 431.1. the matters we set out at 428 - 430) 431.2. one of the reasons for seeking OH/GP advice was to identify adjustments that might assist 431.3. the feedback Vantiva was receiving from Ms Chater on behalf of Mr Seymour was that he was unable to engage with Vantiva and 86 / 107 431.4. much of the contact he did receive from Vantiva was characterised as harassment.[432]Finally, given Vantiva view took the responses to the questions posed in relation to his absence took the issue no further forward, it is difficult to see how if questions in writing been asked in relation to the disciplinary investigation they would have taken that any further and thus ameliorated any disadvantage.[433]Those matters aside as no evidence was led by Mr Seymour as to the disadvantage the failure to progress the investigation caused or for that matter when that should have been done (given what was agreed at the grievance meeting on 8 November 2022) it is difficult in any event to see how we could evaluate that issue any further.[434]On 25 June 2023, three weeks after Mr Seymour’s first claim was issued, Mr Beaton emailed Mrs Harrison [332] explaining the role Mr Seymour had undertaken prior to his absence and how it had been covered. In summary Mr Beaton relayed the following:- 434.1. Mr Seymour’s role was as one of two Team Leaders who would deal with Replenishment and Bulk, that the team leader role was critical and the department was simply too big to be run by a single shift Team Leader. 434.2. Vantiva had covered his absence (principally by moving employees around departments) including providing Mr Stefan Pucula (Team Leader in ‘Goods In’) with training on Replenishment and Bulk and requiring him to undertake additional duties to cover for Mr Seymour’s absence. STAGE THREE ABSENCE PROCESS[435]On 26 June 2024 Mr Seymour provided a MED3 Sick Note dated 25 June 2023 that was for the period to 24 September 2023 [286 & 342]. Miss Waters told us [SW/47] that as this was the first sick note for longer than a month it indicated to her that something had changed and that Mr Seymour would not be coming back to work for the foreseeable future. As a result it was decided following a discussion with Mrs Harrison to move to a stage three absence meeting to understand if Mr Seymour would be able to work in the foreseeable future.[436]There was then an unexplained delay that neither party addressed specifically in the evidence.[437]On 4 August 2023 Mrs Harrison wrote to Mr Seymour setting out the next steps Vantiva was proposing to take [289 – 294]. We were told by Miss Waters [SW/48 - 51] and Mrs Harrison [JH/36] that Mrs Harrison was assisted by Miss Waters due to her told us given her previous involvement and she also received advice from Vantiva’s legal advisors. That letter relayed the absences and reasons for them, set out the reasons why Vantiva had tried to discuss his absence with Mr Seymour and the outcomes of those steps. It then set out the position regarding the available medical/OH advice and the offer of support via MetLife. In that respect the letter made clear in line with Mr Seymour’s requests, Vantiva would not make any further requests access to his medical records or offer referrals to MetLife but if he wished to discuss those options with Vantiva it would be happy to do so.[438]The letter again sought to get input from OH but this time in light of the concerns Mr Seymour had raised about Ms Horton’s letter of 10 December, Sugarman Occupational 87 / 107 Health, an alternative provider, was suggested [292 & 295 – 297]. Mr Seymour was informed that Ms Chater could accompany him to any meeting [294]. The letter cautioned that if Mr Seymour did not consent to OH, then the meeting and discussions would have to continue without the benefit of an OH report and warned that his employment could be at risk of termination on the grounds of ill-health/capability if Vantiva was “unable to establish a reasonable likelihood of [him] returning to work or achieving the desired level of attendance within a reasonable time” [293] (see also (441)).[439]No response to the letter of the 4 August was received from Mr Seymour. A follow-up letter was sent on 1 September 2023 [298]. Again, Mr Seymour failed to respond.[440]Mr Price told us [MP/7] that around the middle of September 2023, Miss Waters asked him to conduct a stage three absence meeting with Mr Seymour. Mr Price told us he believed he was selected because 440.1. the meeting needed to be conducted by someone of at least the level of Operations Manager due to the stage of the procedure and the risk of dismissal, 440.2. Mr Seymour’s line manager, Mr Jarman had conducted stages one and two of the long-term absence procedure the HR team felt it was appropriate to have an independent person (by that we take it to mean someone not previously involved in the process) to conduct the final stage, 440.3. Mr Beaton, Mr Jarman’s line manager, had dealt with Mr Seymour’s grievance, and again the HR team felt someone independent needed to be involved, 440.4. the next level of seniority from Mr Beaton would have been Mr Neill Paterson, Vice President, General Manager, Europe and he needed to be available to deal with any appeal and 440.5. he (Mr Price) had not previously been involved in any process or procedure involving Mr Seymour.[441]On 21 September 2023 Mr Price invited Mr Seymour to attend the stage three long term absence meeting [299 - 300] to be held at 10:00am on Friday 6 October at Vantiva’s Rugby office. He explained that Miss Waters would be present to take the minutes. His letter summarised the attempts Vantiva had made to gain clarity of “the effect that your illness has on your ability to work, the expected timescales of your absence and how the Company can best support you in order to facilitate your return to work”. He continued:- “I must inform you that if, following the meeting on 6th October 2023, we are unable to establish a reasonable likelihood of you returning to work or achieving the desired level of attendance in a reasonable time, then your employment could be at risk of termination on the grounds of ill-health/capability. I sincerely hope that this will not be the case and for this reason, if there is any information which you consider relevant which, the Company ought to consider in 88 / 107 determining your fitness to work then please ensure you make this information available to us for the meeting.”[442]He again reminded Mr Seymour of his right to be accompanied as set out in Vantiva’s procedures but stated that if Mr Seymour wished to bring his partner as a representative, then that would be permitted. Finally he asked Mr Seymour to confirm he would attend by emailing him by 29 September 2023.[443]On 25 September 2023 Mr Seymour provided a MED3 Sick Note dated 25 September 2023 lasting until 23 December 2023 [343] but he did not respond to the invitation.[444]Nor did Mr Seymour attend the stage three long term absence meeting on 6 October 2023. After approximately 10 minutes, Mr Price called Mr Seymour to find out whether he intended to come to the meeting. He made a note of the voicemail he left [302]. The meeting was rearranged to 11 October 2023 [302 and 303 - 304]. Again, Mr Seymour did not respond to the invitation. On 10 October 2023 Mr Price tried to call him to understand whether he would be attending the meeting the next day. Mr Seymour did not answer the phone or return the call.[445]Mr Seymour did not attend the meeting rearranged for 11 October 2023. After approximately 10 minutes Mr Price phoned Mr Seymour and left a voicemail [305]. The meeting was rearranged again to 16 October 2023 [305 - 307]. Within the invitation Mr Price made it clear that if My Seymour failed to attend that meeting without good reason, Vantiva may have no choice but to proceed with the meeting in his absence and make a decision based on previous meetings and any other documentation available.[446]Mr Price asked Mr Seymour to confirm his attendance by 15 October 2023. Again, no response was received.[447]On 16 October 2023 Mr Seymour did not attend the rearranged absence meeting. Mr Seymour was again called to identify why he did not attend. Ms Chater answered the phone and confirmed that Mr Seymour was not available and given Mr Price was calling from Vantiva, she was not able to take messages, correspond or have Mr Price acknowledge her in any way, and this was due to a decision by Vantiva. Mr Price’s note of the call was before us [308]. Mr Price told us “while I would not say that the tone in which Ms Chater spoke to me was rude, she would not let me speak and then abruptly put the phone down on me”. Mr Price told us he was slightly taken aback [MP/26-27].[448]Mr Price told us despite having made it clear that this would be the final re-scheduled meeting he was unsure whether he should rearrange the meeting for a fourth time. He concluded that given Mr Seymour and his partner were flatly refusing to engage in the process that would not do much good and having talked this through with Miss Waters, he decided to proceed. We find he was entitled to do so. Ms Chater’s response to his telephone call made that abundantly clear. OUTCOME OF THE STAGE THREE LONG-TERM ABSENCE MEETING OF 16 OCTOBER 2023[449]The stage three long-term absence meeting went ahead on 16 October 2023 in Mr Seymour’s absence. Mr Price talked through with Miss Waters his understanding of the position and she took a note [309-310]. He told us he was conscious that in the light of 89 / 107 the first OH assessor being unable to provide any useful information and what he viewed as Mr Seymour’s refusal to allow Vantiva to write to his GP (direct) or seek additional OH support after that, the decision would have to be made without the benefit of medical evidence. He concluded that since 20 October 2022 Mr Seymour had been absent from work for almost a year due to “stress at work”, his latest fit note dated 25 September 2023 [301], was not due to expire until 23 December 2023 and it was not clear if Mr Seymour would be fit to return to work and if so, when. He told us Mr Seymour’s inability to attend meetings and/or respond to questions supported that.[450]Mr Seymour’s absence history is summarised in the Stage Three Report that followed at [312]. His three first sick notes (24/10/22-7/11/22, 7/11/22-30/11/22 and 1/12/22- 31/12/22) all cited “Stress at work” as the cause for the absence. The remainder; “Work related stress”. The last two 25 June - 24 September and 25 September - 23 December 2023 were for 3 months. The remainder were all for a month or so.[451]Vantiva argued in light of the multiple adjournments and Mr Seymour’s nonengagement, it was necessary for Mr Price to make a decision on the evidence he had before him. We agree. Mr Seymour had been absent by that point for almost 12 months, almost double the 28 weeks set out in Vantiva’s January 2023 long term absence procedure (see (98)) Ms Chater had indicated in her email of 12 June 2023 she was no longer going to engage with correspondence with Vantiva [285] and Mr Seymour had failed to respond to the various invitation letters.[452]Having considered adjustments made during the process Mr Price concluded there was nothing else Vantiva could do to support Mr Seymour or facilitate a return to work. He told us that whilst at the time he questioned if Mr Seymour intended to come back to work due to his lack of engagement in the process and Mr Seymour’s refusal to consider MetLife seemed strange. as to the latter he explained that having had sight of the Tribunal hearing bundle, he could see this was down to Mr Seymour’s data protection concerns and a belief that Vantiva trying to access his medical records.[453]Mr Price concluded [MP/33] given that Mr Seymour had by that time been absent from work for almost a year and Vantiva had not heard from him (as opposed to his partner) since March 2023, he felt there was no other option but to dismiss Mr Seymour on grounds of ill-health.[454]Miss Waters told us [MS/55] that an outcome letter was drafted with the assistance of legal advice received on Tuesday 17 October 2023 but she forgot to send it out that day and did not realise until 19 October. When she did so, she tried to call Mr Seymour to confirm the decision to dismiss him on the grounds of capability before sending him the letter but he did not answer. She then compounded the error by sending the draft letter by mistake without a date [467]. She told us she tried to recall the message and then re-sent the letter with the amended date 19 October 2023 [311] still giving a termination date of 17 October 2023.[455]Those points aside the letter indicated Mr Seymour had the right to appeal within five days of receiving the letter to Mr Paterson.[456]Ms Chater verifies large parts of Miss Waters’ account [SC/28]. She accepts that on Thursday 19 October 2023 she tried to answer a call on Mr Seymour’s phone from an unknown mobile phone number but that she missed the call. She then picked up a 90 / 107 voice mail message from Miss Waters stating Mr Seymour had been dismissed which she passed on to him.[457]Given the letter includes an email address and Miss Waters’ reference to trying to recall the earlier message on balance we find she sent it as an attachment to an email despite no covering email being supplied. As we state at (11.1) based on Gysda Cyf 1 the termination date is incorrect as the date of dismissal is to be treated as when received by Mr Seymour. We find given that both Miss Waters and Ms Chater agreed on this that that was on 19 October 2023.[458]Ms Chater also told us [SC/29] that on Sunday 22 October 2023, she received an email from a person still employed by Vantiva [322-323] who told her that she had heard Mr Seymour had been dismissed on Tuesday 17 October 2023, (i.e. two days prior to Ms Water’s telephone call). She does not tell us who the person was, what that person had been told or who was the source of the informant’s knowledge. Ms Chater also stated her informant made her aware that Vantiva had offered redundancies that week and they negated the need for a Team Leader role. We return to that in a moment.[459]The email from the informant states “there was a rumour on Tuesday that they had sacked him?” before going on to say “Needless to say [I’m] sick of the fucking gossip and rumour shite in this place”. REDUNDANCIES[460]Vantiva admits (aGoR/52 [135]) that on Friday 20 October 2023 an announcement was made confirming that a number of roles had been placed at risk of redundancy. It asserts Mr Seymour’s role was not one of the roles that was at risk of redundancy specifically:- “It was proposed that there would be a reduction in headcount, to take place in two phases. Phase one was a general staff reduction in specific roles across the Respondent’s Unit A and Barsan site. Phase one was scheduled to take place in November 2023. Phase two related to the proposed closure of the Barsan site which is due to take place in April 2024.”[461]We were told Mrs Harison [JH/42 to 44] as a result of the business struggling there was a need to cut costs and in advance of Vantiva exiting the Barsan site in Spring 2024, on 20 October 2023 it placed number of employees at risk of redundancy [319]. As a result :- 461.1. its “Returns function” was to move to its Rugby site effective 1 April 2024 and all nine Warehouse Operatives based in Barsan were told they would be offered the same role at the Rugby site, and 461.2. some administrative support functions were to be lost at Rugby[462]Mrs Harrison told us [JH/46] that the Management team were informed about the redundancies on Tuesday 17 October 2023, the ‘Your Voice’ Employee Consultation Forum on 20 October 2023 and employees later that day, 20 October 2024. 91 / 107[463]On 24 October 2023 Vantiva gave 6 months notice (effective 30 April 2024) [379] to terminate an agreement relating to the provision of off-site storage and order processing facilities at the Barsan site.[464]Mr Price told us [MP/38-40] that 464.1. until he had sight of the Tribunal hearing bundle on preparing his witness statement he was not aware that Mr Seymour had made a request for voluntary redundancy, or that Mr Seymour considered his dismissal to be a means of avoiding paying him a redundancy payment. 464.2. whilst Vantiva announced a number of proposed redundancies in October 2023 he was not made aware of the proposed redundancies prior to the announcement (as the proposal was decided at a higher level of management) 464.3. as a result he was not aware of them when he took the decision to terminate Mr Seymour’s employment on 16 October 2023 and redundancy was not, at any point, considered or discussed in relation to the decision to dismiss Mr 464.4. no Team Leaders from Vantiva Rugby were at risk of redundancy in either the first or second phase of the proposals announced on 20 October and Mr Seymour’s role was not redundant.[465]Mrs Harrison supports that view stating [JH/45] that at no stage was there a redundancy proposal or situation in respect of the Team Leaders at Vantiva Rugby because that role remained essential to the functioning of the business. She did however confirm that two Team Leaders put at risk at the Barsan site due to its closure as part of Phase Two of the redundancy exercise (the proposal was this was to take place in April 2024 (see [320])). She told us this was because Vantiva considered the existing Team Leaders at Rugby (including Mr Seymour’s role) could manage the additional warehouse operatives coming over from the Barsan site. APPEAL AGAINST DISMISSAL[466]On 23 October 2023 Mr Seymour emailed Mr Paterson his appeal against his dismissal [328 - 331]. In doing so he asked Vantiva to note Ms Chater would be dealing with the appeal on his behalf and to liaise with her giving a contact number and email address.[467]On 25 October 2023 Vantiva acknowledged receipt of Mr Seymour’s appeal [327] and on 1 November 2023 [326] Mr Paterson emailed him to give an update on the process, stating that given there was a large volume of paperwork to look through he would be in contact within the next 7-10 days to provide a further update.[468]About 40 minutes later Ms Chater emailed Vantiva stating as it ‘“does not recognise me as Darrens representative” and because Mr Seymour “is not of the mind that he can currently deal with matters himself …. the decision he has made is to withdraw his appeal against his dismissal.” As part of the rationale for that she referred to Mr Seymour feeling the appeal “will not be dealt with in a timely and fair manner as with Darren's other appeals with Vantiva”. She continued “Darren's dismissal was fully effective as at 17th October 2023, therefore as of this email, communication is now 92 / 107 permanently ceased” [326]. Within that email Ms Chater also referenced Vantiva’s “rude and dismissive attitude to my supporting my partner is not helpful, nor your dismissal of reasonable adjustments which would have enabled Darren to communicate with Vantiva due to his disability”.[469]Mr Paterson responded via email to Mr Seymour’s email address (rather than Ms Chater’s email address as had been requested) on 6 November 2023 [325] to state that as at that point he had not invited Mr Seymour to attend an appeal hearing he had written to update Mr Seymour on the progress of the appeal. He set out Vantiva’s view that neither Mr Seymour nor Ms Chater had been advised that Ms Chater was not recognised as Mr Seymour’s representative, that alternative arrangements could be considered if Mr Seymour was unable to attend an appeal hearing and he was “unclear on what basis I have been rude and/or dismissive as the correspondence to date has been limited to confirming the current position” [325].[470]Despite Ms Chater’s email confirming the appal was being withdrawn Mr Paterson gave Mr Seymour a further opportunity to review the position and stated that if he did not hear anything further by Friday 10 November the request to withdraw the appeal would stand. In our experience many employers would not have given Mr Seymour the opportunity to reconsider.[471]By the time the deadline for reply had passed no response was received from Mr Seymour or Ms Chater and so Mrs Harrison told us Mr Seymour’s appeal was treated as withdrawn [JH/41]. Having gone beyond the steps many employers in our experience would take, Vantiva was entitled to come to that view. Vantiva was entitled in those circumstances to treat Mr Seymour’s appeal as withdrawn.[472]In closing Ms Chater raised an argument that again did not form part of the list of issues concerning Mr Paterson’s response to her email of 6 November. She identified that replying to Ms Chater’s email address would have been a reasonable adjustment and as a result the date he gave for confirmation the appeal being pursued was missed.[473]Ms Chater complains that at the time Mr Seymour lodged his appeal on 23 October 2023 he was still mentally unwell and thus Mr Seymour requested that Mr Paterson contact Ms Chater’s email address on the basis that he was not well enough to pick up emails.[474]That does not form part of the list of issues, the facts were not set out in either claim, no application to amend was made and no evidence was led to support such a claim.[475]That aside a provision, criterion or practice was not specifically identified and nor is it our role to identify one. We infer from what she told us that the policy she relied upon was Vantiva responding to appeals using the email address it had for its employees.[476]The need to infer that yet further demonstrates the difficulty the Tribunal would be in addressing such a complaint. It is not and cannot be clear on the precise basis for the complaint as it was not set out until after the close of evidence and thus not put to any witnesses.[477]Even if that issue could be circumvented when replying on 1 November Ms Chater used Mr Seymour’s email address. It is a simple matter to add an email address to the 93 / 107 email client used for collecting emails or to check an email account. Given that is so neither Ms Chater nor Mr Seymour explained how use of Mr Seymour’s email address for what we find was a initially a courtesy update or subsequently a request for confirmation the appeal was being pursued caused any disadvantage to Mr Seymour.[478]The lack of clarity of the complaint aside the prejudice caused to Vantiva is demonstrated by no witness statement having been supplied by Mr Paterson on the basis the Tribunal would not be hearing complaints directed toward him and thus he was not called as a witness.[479]As to the issue regarding the sending of the request for confirmation whether the appeal was being pursued, as Ms Chater had made plain her email of 1 November was an end to matters and had used Mr Seymour’s email account to send that it is difficult to see why Mr Price would use another account or why Ms Chater was not checking Mr Seymour’s account.[480]That argument must therefore also fail.[481]To conclude the timeline of events on 11 December 2023 Mr Seymour submitted a second Tribunal claim [60 - 74]. Our further findings & Conclusions DISABILITY[482]Having initially asserted that Mr Seymour was disabled within the meaning of s.6(1) Equality Act 2010 (EqA) by reason of depression / anxiety / [REDACTED] from 20 April 2023 to date [aGoR/12]) Vantiva revised that view following a question from the judge referencing the content of his GP’s letter dated 20 April 2023 [350] in which the GP stated “This is to confirm that the above person suffers from [REDACTED] since November 2022 and has been severely impacting on his life. This condition is likely to remain for the foreseeable future and potentially become a long term condition. He has been making contact with us regularly and compliant [REDACTED].”[483]Vantiva accordingly accepted that Mr Seymour was a person with a disability within the meaning of s. 6 EqA from 11 November 2022 (and not as pleaded from 20 April 2023 [aGoR/12]). Vantiva does not accept that Mr Seymour was disabled prior to then.[484]Given Vantiva received that letter from his GP via Mr Seymour on 26 April 2023 and thus it accepts that it had actual and constructive, knowledge of Mr Seymour’s disability (i.e. for his for the discrimination because of something arising from disability complaint) from this date onwards, but not before.[485]Vantiva does not accept knowledge for the failure to make reasonable adjustments complaints at all due to the additional element such complaints require (specifically it does not accept it was aware of a substantial disadvantage). 94 / 107[486]We will dealt with the question of knowledge when dealing with the discrimination because of something arising from disability and the failure to make reasonable adjustments complaints. THE FAILURE TO MAKE REASONABLE ADJUSTMENTS[487]We address this issue first on the basis that if there is a breach of this provision any justification argument in relation to the “something arising from” complaints is likely to fail.[488]As to the PCPs the respondent accepts all were capable of being PCPs. The PCPs all concerned the application of Vantiva’s sickness policy. We address the 5 PCPs that were argued. PCP1 [6.2.1.1] - requiring a level of contact to be maintained.[489]Mr Seymour accepted in evidence this provision, criterion or practice was not applied.[490]Whilst Ms Chater sought to argue Mr Seymour was unable to maintain levels of contact due to his mental health an adjustments complaint such as that here focusses on what Vantiva did and the disadvantage that caused for Mr Seymour. We find that he was not asked to maintain a minimum level of contact by Vantiva or its employees as his non-engagement with Vantiva demonstrates. That complaint must therefore fail. PCP2 [6.2.1.2] - requiring medical records / OH assessments.[491]Vantiva accepted that OH assessments were sought but not medical records. Further it denied seeking OH assessments put Mr Seymour to a disadvantage.[492]As we state at various points (see for example (218)) Mr Seymour acknowledged that there was no request by the Respondent to access his medical records. That aspect of the complaint must fail.[493]As to the remaining element requiring OH assessments:- The disadvantages relied upon[494]They were threefold:- 494.1. [6.3.1] his mental health meant that he couldn’t engage with the process, 494.2. [6.3.2] proceeding added to his stress and 494.3. [6.3.3] he needed support from his partner and/or others?[495]Despite the low threshold, in our judgment Mr Seymour does not adequately address how the disadvantages at [6.3.1] and [6.3.2] flow from requiring him to undergo OH assessments. looking behind that nor did he address in any detail how they flowed from what appeared to the basis for his concerns, 495.1. his data being ‘leaked’ and/or 495.2. given the offer of a alternative OH provider, the poor experience he had in the appointment with Enspirita Limited.[496]That issue aside, in any case involving workplace stress there is a fundamental conundrum; addressing the issue may cause additional stress yet not addressing the 95 / 107 issue allows the stress [or the stress of having to deal with it on return] to continue. We found the OH assessments were sought amongst other matters to allow any disadvantages and their cause[s] to be identified and if possible addressed by adjustments being made.[497]We find given those findings that Mr Seymour has not passed the albeit low threshold to show disadvantage in relation to [6.3.1] and [6.3.2]. We address [6.3.3] starting at (514). s.20 Knowledge[498]In closing Ms Chater argued that Vantiva had material knowledge of Mr Seymour’s disability from November 2022, as evidenced in 498.1. the emails from Mrs Harrison HR, dated 25 October – 1 November 2022 [196-200] where Mrs Harrison references Mr Seymour [REDACTED] (see our findings starting at (136) and in particular paragraph (138)), 498.2. based on Mrs Harrison’s training as a Mental Health first aider (see the next following paragraph) and 498.3. the GP letters that supplied on 23 November 2022 [344], 20 April 2023 [350] and 16 May 2024 [351], which she suggests clearly stated the severity of the Claimants [REDACTED] condition.[499]As to the first two points Mrs Harrison was merely repeating what she had been told, namely that Mr Seymour was not of “sound mind”; whilst she told us that she was a mental heath first aider her role was to signpost to sources of help and Mrs Harrison was not medically or legally qualified and not therefore able to form a view.[500]As to the third point, we found above that having viewed the GP letter of 23 November 2022 the OH assessor, Ms Horton’s conclusion was that “Unfortunately there is no OH report of any substance to write as Mr Seymour would not sit down or engage in the process.” and as a result “There is insufficient clinical evidence known by Occupational Health to advise on Mr Seymour's 'mental fitness or ability' to attend any meetings or hearings I'm afraid.”. Given we found she had reviewed the GP letter it follows from that that absent Mr Seymour engaging the GP letter was insufficient to enable her to form a view. Further, she thus suggested there may be some benefit in writing to his GP which she was happy to do. We agree the GP report was insufficient.[501]In relation our determinations in relation to knowledge of the disability issue, (which is a different question to the knowledge question here), there was little detail of the adverse effect other than via what Ms Chater had relayed, no prior history of mental health issues or how long this would continue for. As Mr Seymour conceded in his evidence, even he did not know he was disabled (see (291 - 294)).[502]As to the GP letters of 20 April 2023 and 16 May 2024 they give a diagnosis and date this but do not address substantial disadvantage.[503]Further, it was accepted by Mr Seymour that the first time he or Ms Chater requested a reasonable adjustment was when Ms Chater’s attendance was sought as a reasonable adjustment on 24 May 2023 [280-281]). We address the effect of this at starting at (519) below 96 / 107[504]Where an employer has done all it reasonably can be expected to do to find out whether a worker has a disability and as here, is, or is likely to be, placed at a substantial disadvantage (an objective test) and either those attempts have come to nought and/or have failed to provide evidence of disability and/or substantial disadvantage it is not seized with constructive knowledge of disability.[505]We found the existing medical/OH evidence here was inadequate to form a view as to substantial disadvantage. Given Vantiva’s repeated attempts to ascertain the position via OH (whether that be the original or via an alternative provider), Mr Seymour’s GP or Mental Health Team we find it had done all it reasonably could be expected to do to find out whether Mr Seymour was likely to be placed at a substantial disadvantage and thus was not seized with constructive knowledge of substantial disadvantage for the purpose of the failure to make reasonable adjustments complaint.[506]Accordingly, this and the remaining failure to make reasonable adjustments complaints Mr Seymour made fail. That aside, we have gone on to address them. The adjustments contended for[507]As to the adjustments contended for 507.1. [6.5.1] Adjusting the process 507.2. [6.5.2] Not requiring meetings 507.3. [6.5.3] Allowing external support at meetings 507.4. [6.5.4] Not dismissing him 507.5. [6.5.5] Offering voluntary redundancy[508]We address [6.5.3] allowing external support at meetings under PCP4 [6.2.1.4] starting at (515) below.[509]We address [6.5.4] not dismissing him and [6.5.5] offering voluntary redundancy under PCP5 [6.2.1.5] starting at (527) below.[510]As to (6.5.1) adjusting the process Mr Seymour does not identify what the adjustment should be.[511]As to both [6.5.1] and [6.5.2] we find viewing matters objectively as we must that it was reasonable for Vantiva to ask Mr Seymour to attend an OH assessment meeting; it needed to do so it could identify and potentially address the issues we relay at various points above. Ultimately adjustments are about facilitating a return to work and thus an OH assessment was integral to that. That could not be avoided for the reasons we again have given above. The effect of Mr Seymour not agreeing to engage in that process which we found was so, was that that extended the stress for Mr Seymour and protracted matters for Vantiva.[512]We found viewed objectively Mr Seymour’s concerns as to both the leak of information and access to medical records were ill founded. That complaint also fails. PCP3 [6.2.1.3] – requiring attendance at review meetings[513]Mr Seymour in evidence accepted this PCP was not applied. 97 / 107[514]That complaint must also therefore fail. PCP4 [6.2.1.4] - Not allowing external companions or support[515]Vantiva denied this PCP was applied. Mr Seymour accepted that this policy was only applied at the stage 1 meeting on 3 February 2023.[516]For the reasons we give at (336) we find Vantiva did apply this PCP; that was set out in its policy (see (288)) and as here was routinely applied save where as here adjustments were sought. The PCP had “something of the element of repetition about it.” that “would relate to matters of more general application than simply to the individual person concerned." 56[517]As to disadvantage Ms Chater accepted this was actually a complaint that she was not recognised as Mr Seymour’s representative. She stated this may have been a vanity issue on her part before correcting that to say that it was more about recognition that Mr Seymour was mentally unwell and needed that help. This complaint thus relates to issue [6.3.3]. In any event we have addressed issues [6.3.1] & [6.3.2] at (510 & 511).[518]Mr Seymour accepted that Ms Chater was close by during the telephone call listening in and making notes. It is difficult to see how her not being in the same room in those circumstances caused one of the three disadvantages contended for. That reinforces the points we make at (495 - 497). For those reasons and those concerning knowledge at (495 - 504) this complaint must also fail.[519]As we say above, the first time Mr Seymour or Ms Chater requested a reasonable adjustment was when Ms Chater’s attendance was sought on 24 May 2023 [280-281]).[520]For the reasons we give at (504) Mr Seymour had not engaged with OH or the long term absence process by providing meaningful information, and where his GP and/or the Mental Health Team had not provided a report addressing the issues, and so we find the Respondent neither knew nor could reasonably be expected to know that Mr Seymour was put to any substantial disadvantage prior to 24 May 2023. After that date the only adjustment sought in that email was to allow Ms Chater to represent Mr Seymour in “all matters regarding his employment with Vantiva, including telephone conversations, e mail, meetings or communication of any kind”.[521]Thus, even if that was a disadvantage apart, save for the Stage 1 Meeting of 3 February 2023 Ms Chater was permitted to represent Mr Seymour. Accordingly, Mr Seymour was not put to that disadvantage after 24 May 2023.[522]If we are wrong on that Mr Rhodes asserts that it would not have been reasonable to permit Ms Chater to be Mr Seymour’s companion at the Stage 1 Meeting on 3 February 2023 because at that time Vantiva was having significant difficulty speaking to Mr Seymour directly and had had difficult encounters with Ms Chater.[523]Further, Ms Horton, the OH Assessor had concluded [347] in their meeting of 20 December 2022, that Mr Seymour had decided to ‘not cooperate or engage in the process. Possibly influenced by another.’ Mr Rhodes suggested that given that Mr Seymour was Vantiva’s employee, it is unsurprising that Vantiva wished to speak to 56 Simler LJ as she then was in Ishola v Transport for London [2020] EWCA Civ 112 at [32] 98 / 107 him alone, given Ms Chater’s influence was a potential bar to their understanding Mr Seymour’s condition and further, that she was potentially a disruptive influence.[524]Our determinations above aside we find the adjustment sought (external support at meetings - essentially that Ms Chater be permitted to attend) was not reasonable in the circumstances. We adopt the concerns that Miss Waters and Mrs Harrison had regarding Ms Chater’s influence. They were expressed independently by Ms Horton (see the quote in the preceding paragraph and (244)).[525]We find Vantiva were entitled to be concerned and exclude Ms Chater from meetings. Whilst, Vantiva later permitted Ms Chater to attend we find it did so because it felt that was only way to elicit information from Mr Seymour regarding his absence and his disability and despite having agreed to that Mr Seymour still did not attend.[526]For those additional reasons that complaint also fails. PCP [6.2.1.5] – dismissing him[527]Vantiva accepted this occurred but deny that Mr Seymour was placed at a substantial disadvantage by virtue of his dismissal; arguing 527.1. dismissal is something which has an equally negative effect on all employees and 527.2. given his lack of substantive engagement in the Stage 1 process and thereafter, with no contact from him after 20 March 2023, and no contact from Ms Chater after 12 June 2023, Mr Seymour did not suffer a substantial disadvantage.[528]Applying Griffiths (see (52 & 53) above) we find the PCP bit harder on Mr Seymour than it did on those without disability. It is sufficient following Griffiths (see [58] of the judgment) that the employee is put at a substantial disadvantage compared to the nondisabled. We find that is what happened here. Mr Seymour was put to a disadvantage. He was dismissed because of his absence/that it was unlikely there was a realistic prospect of him being fit to undertake his role within a reasonable time.[529]We repeat the points we make concerning knowledge of disadvantage at (495 - 504) and so this complaint too must fail.[530]As to the adjustments sought we have addressed [6.5.1] to [6.5.3] above.[531]As to dismissal [6.5.4] it is difficult to see given the adjustment is set out in the negative other than allowing the situation to continue potentially indefinitely with an employee who was not engaging, what the respondent could do to resolve the issue. Based on the most recent sick note (3 months) Mr Seymour was unable to undertake his role and there evidence that there was suggested it was unlikely there was a realistic prospect of him being fit to undertake his role within a reasonable time.[532]We have addressed at (296 - 334) the issue concerning Vantiva’s policies and the argument the procedure adopted was void.[533]Mr Rhodes suggests that it would not have been a reasonable adjustment to not dismiss Mr Seymour. Mr Seymour had, at the time of his dismissal, been absent from work for nearly a year, there was no clear indication when he was likely to be able to 99 / 107 return. There were three Stage 3 Meetings, none of which were attended by Mr Seymour and an almost complete lack of medical information about when he was likely to return to work. Moreover, when Mr Price called Mr Seymour on 16 October 2023, Ms Chater refused to engage with him and put the phone down.[534]Ultimately adjustments are about facilitating a return to work and despite numerous attempts to do so Vantiva had been unable to obtain an OH or GP report that would have allowed Vantiva to take a view on what was required to facilitate that. As we state at (451) Mr Seymour had been absent by the time of the final stage 3 hearing for almost 12 months. That is almost double the 28 weeks set out in Vantiva’s January 2023 long term absence procedure.[535]In those circumstances viewed objectively not dismissing was not a reasonable adjustment nor was it sought as one of the adjustments sought. We address those that were at (495 - 497) and (514 - 525). For those reasons and those concerning knowledge at (495 - 504) this complaint must also fail.[536]As to offering voluntary redundancy [6.5.5] this argument was not specifically advanced in closing by Ms Chater. That aside we address it. It is long settled law that the financial cost of making an adjustment and the impact on the employer’s financial situation go to the reasonableness question.[537]As the Court of Appeal has made plain 57 the basic premise underlying the law on adjustments is to assist disabled employees to obtain employment and/or to (re-) integrate them into the workforce and it not simply to put more money into the wage packet of disabled persons.[538]As Mr Rhodes pointed out (see (39.6)) Tameside Hospital NHS Foundation Trust v Mylott is authority for the proposition that the duty to make reasonable adjustments does not extend to enabling a disabled employee who is no longer able to do the work to leave the employment on favourable terms. However, as he also highlighted, Mylott was distinguished in Lloyds Bank Plc v Hill.[539]In Hill the claimant was disabled by virtue of reactive depression which she said resulted from bullying and harassment at work. On Ms Hill’s return to work after a period of sick leave she sought an undertaking from her employer that they would not require her to work with the two colleagues concerned and, if at a later stage there was no alternative, that she would be offered a severance package equivalent to that provided on redundancy. Her employer refused to give any undertaking to that effect.[540]Ms Hill succeeded on her claim of disability discrimination based on a failure to make reasonable adjustments before the Employment Tribunal.[541]On appeal the EAT found the Employment Tribunal was entitled to find for her on the basis:- 541.1. that the employer had a “practice” of not giving firm undertakings in circumstances like these; 541.2. that that practice had put Claimant at a substantial disadvantage in comparison with others not suffering a disability because she suffered a level 57 O’Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 (CA). 100 / 107 of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have; 541.3. that the giving of an undertaking would have alleviated the disadvantage because it would have alleviated that fear; 541.4. that it would have been reasonable for Respondent to give a firm undertaking in the form requested.[542]A redundancy payment was not one of the adjustments specifically sought. We again adopt what we say with regards to the disadvantages at were at (495 - 497) and (514 - 525) and knowledge at (495 - 504).[543]Those points aside in this case the PCP is the application of the sickness policy and specifically Mr Seymour’s dismissal. In contrast to Hill the disadvantages here all relate to the application of the sickness policy, the effect of which was to bring Mr Seymour’s employment to an end. Here Mr Seymour seeks a payment to compensate him as result of that termination as an adjustment. In contrast in Ms Hill’s case she sought an assurance related to her ongoing employment that would have alleviated an ongoing disadvantage. The distinction between them (albeit illustrated from a case on a different topic) is that the dismissal here is “… a one-off act with continuing consequences … even though the dismissed employee may suffer loss of pay and pension for the rest of his or her life” 58 whereas in Ms Hill’s case she continued to encounter “conduct extending over a period”.[544]Given there is no objective way of balancing the cost against the benefit to the employee the matter is ultimately one for the ‘industrial jury’ provided by the employment tribunal 59.[545]We find the adjustment sought of offering voluntary redundancy was not related to assisting Mr Seymour’s return to the work place. Nor as in Mrs Hill’s case, was it due to possible future conduct. Rather Mr Seymour was seeking that to alleviate the ongoing consequence of the decision to dismiss. Setting the absence of any realistic prospect of the achieving the purpose underlying the duty to make reasonable adjustments against the cost to the business we find it was not reasonable to make that adjustment. That claim also fails.[546]The failure to make reasonable adjustments fail and are dismissed. THE DISCRIMINATION BECAUSE OF SOMETHING ARISING FROM DISABILITY[547]The respondent accepted the sole “something” relied upon [Issue 5.2], was Mr Seymour’s sickness absence (that is after 11 November 2022). It now accepts the second limb of unfavourable treatment [5.1.1.2], dismissing him was unfavourable treatment but not the first [5.1.1.1], inviting the claimant to a stage 1 meeting in January 2023. It states this was as a result of their long term absence policy being engaged, viewed objectively that was not unfavourable treatment because it was to assist Mr 58 Barclays Bank Plc v Kapur [1991] I.C.R. 208 (HL) [42] 59 Cordell v Foreign and Commonwealth Office [2012] ICR 280, Aleem v E-Act Academy Trust Ltd UKEAT/0099/20. 101 / 107 Seymour getting back to work and in any event was before they had knowledge of his disability.[548]As we state at (290) Mr Seymour conceded that the holding of a stage 1 meeting was not unfavourable treatment. We agree. The same must follow in relation to the invitation. That complaint therefore fails.[549]As to the remaining part of the complaint (concerning dismissal), knowledge of disability for the s.15 complaint is accepted from 26 April 2023 (referencing a GP letter dated 20 April 2023 [350]).[550]Given dismissal is conceded as unfavourable treatment and that occurred after the date of knowledge we turn to the justification issue. The respondent addresses this in the following paragraphs of its response form [137] “65. However, the Respondent contends that the Claimants dismissal was in order to achieve a legitimate aim, namely to:a. minimise disruption to the business;b. reducing the strain on other employees in the Respondent’s business;c. apply the Respondent’s policies and practices fairly and consistently; andd. maintain a fair, effective and transparent sickness management regime. 66. The Respondent further contends that dismissing the Claimant was a proportionate means of achieving that aim because, among other reasons: a. The Respondent required someone in the Claimant’s role of Team Leader and was unable to replace the Claimant whilst he remained employed; b. The Respondent followed a comprehensive sickness absence procedure prior to dismissing the Claimant including seeking to obtain Occupational Health advice, seeking to obtain the Claimant’s GP records, holding three formal absence meetings with the Claimant (two of which he did not attend), alongside making numerous attempts to discuss the Claimant’s absence with him; c. The Respondent made numerous attempts to understand what, if any, reasonable adjustments could be made to assist the Claimant back to work; d. The Claimant was not engaging with the Respondent or the longterm sickness absence process and, at the time of his dismissal, the Respondent had not received any written or verbal communication directly from the Claimant from 20 March 2023 onwards; and 102 / 107e. At the point of the dismissal, there was no indication whatsoever that the Claimant would be able to return to work in the foreseeable future.“[551]Starting at (296 & 333) we have addressed the issue concerning Vantiva’s policies and the argument the procedure adopted was as a result void.[552]Aside from the fact that Mr Seymour conceded that his dismissal was a proportionate means of achieving a legitimate aim as the Court of Appeal decided in Pipe at [89] in certain cases the Tribunal’s findings in relation to adjustments can stand as a proxy for its consideration of justification. We have addressed the question of dismissal under the adjustments head. A similar reasoning as we adopt there applies here. In essence 552.1. the absence had continued for almost 12 months and based on the latest sick note there was no realistic prospect of a return in the foreseeable future, 552.2. it was necessary to address the absence issue and not allow the position to continue for the reasons given at [aGoR/65 & 66a], and 552.3. Vantiva had attempted to follow its sickness procedure and seek OH advice on what adjustments could be made and Mr Seymour was not engaging with either for reasons connected to his mental health.[553]We find Mr Seymour’s dismissal was relevant and necessary. It could not allow the situation to continue indefinitely for the reasons Mr Beaton gave (see (434)). As to proportionality we have addressed doing nothing and adjusting the procedure in relation to both the failure to make reasonable adjustments complaint and the preceding paragraphs of this complaint. We have addressed the other alternative suggested offering voluntary redundancy at (536). In our judgment there was no lesser alternative. That complaint also fails.[554]The discrimination because of something arising from disability complaints fail and are dismissed. HARASSMENT[555]Given the concessions made and for the reasons we have given above under each head, each of the harassment complaints fails and is dismissed (see 124, 145, 188, 207, 410 - 411, 218, 282 - 285, 396 & 370 - 373)[556]We also address the complaint raised in closing concerning the Stage One Absence Meeting took place on 3rd February 2023, starting at (334 - 339). UNFAIR DISMISSAL[557]We turn first to Mr Seymour’s allegation that this was a disguised redundancy situation and he was dismissed because Vantiva was trying to avoid the cost of making him redundant. That view appears to stem from the email of 22 October 2023 from a source Mr Seymour declined to identify [322 - 323] (see (458)). That email refers to “Stefan twating [sic] like a chesire cat [sic.] because hes [sic] got Darrens [sic] job”.[558]Whilst Ms Chater alleged Mr Seymour was employed as part of a team that worked at both sites we find his contract [172] provided that he would be based at Rugby. Whilst we accept the T&Cs [179] provided his place of work could be changed on a 103 / 107 permanent or temporary basis provided he was consulted first, there was no evidence before us that was done here. We find Mr Seymour was based at Rugby and the redundancies that followed shortly after his dismissal were at Barsan not Rugby.[559]In his email of 25 June 2023 [332] Mr Beaton set out explained the nature of Mr Seymour’s role and how Mr Seymour’s role had been covered in his absence by moving employees around departments and giving additional training to the person named in the anonymous email, Mr Pucula (the other team leader at the Rugby site) to enable him to undertake additional duties (see (434)). As Mr Rhodes pointed out in his closing submissions, if someone else was performing Mr Seymour’s role at the Rugby site, that role was not redundant, since the requirement for that role at the Rugby site had not ceased or diminished.[560]We accept Mr Beaton’s evidence and find during Mr Seymour’s absence his role had been covered by moving employees around departments and Mr Pucula undertaking additional duties. We find that the requirements of Vantiva for employees to carry out work of a particular kind at the Rugby site, had not ceased or diminished nor indeed (given what we heard about a later round of redundancies (see (465))) were they expected to cease or diminish.[561]Whilst Mr Price did not attend, he told us in his witness statement [MP/38 - 40] that he was not aware of the proposed redundancies at the time his decision to dismiss Mr Seymour was made. The signed notes of the stage 3 meeting [309 -310] clearly state the decision was taken by Mr Price at that meeting and it started at 11:15 on 16 October 2023. Miss Waters was not challenged that that was not so.[562]Mrs Harrison told us [JH/46] that the Management team were informed about the redundancies on 17 October 2023, the ‘Your Voice’ Employee Consultation Forum on 20 October 2023 and employees later that day, 20 October 2024 (see (462)).[563]Whilst the proximity of the dates is potentially suspicious, in the absence of evidence (as opposed to assertions) from which contrary indications could be drawn we accept Mr Price’s evidence (despite his non attendance) that he was not aware of the proposed redundancies at the time his decision to dismiss Mr Seymour was made (see (464)).[564]We find for those reasons that the forthcoming redundancies had no influence on Mr Price’s decision and Mr Seymour was not dismissed because Vantiva was trying to avoid the cost of making him redundant.[565]For completeness we record here that we addressed the request for an offer of voluntary redundancy starting at (536) above.[566]Turning now to Mr Price’s rationale.[567]As we state at (451) Mr Seymour had been absent by the time of the final stage 3 hearing for almost 12 months. That is almost double the 28 weeks set out in Vantiva’s long term absence procedure dating from January 2023. By their own admission neither Mr Seymour nor Ms Chater were engaging with Vantiva and despite numerous attempts to do so Vantiva had failed to obtain a report from OH, or Mr Seymour’s GP [REDACTED] that addressed in the relevant detail his mental health impairment, the disadvantage that put him to (if any) or any adjustments required. 104 / 107[568]Ms Chater suggested that a MED3 sick note identifying a period of absence did not prevent Mr Seymour being fit to return to work earlier than the end of that period. That may be so, but the end date given in the MED3 sick note gives rise to an assumption (albeit rebuttable on the provision of medical evidence) that he would not be fit to return until the end of the period stated in the sick note. No such countervailing medical evidence was supplied. Further, the fact the two most recent sick notes give a 3 month period of absence (rather than the one month period given in all the earlier sick notes) suggests either an acknowledgement that the condition was likely to be longer term or a deterioration in Mr Seymour’s position rather than an improvement. In our view they make the likelihood of a return within the period stated in the sick note less. Whilst we place no weight on this, the retrospective evidence merely confirms that view.[569]Despite Mr Price’s non-attendance we have the unchallenged notes of the stage 3 meeting [309 -310] made by Miss Waters who was in attendance. They show Mr Price considered the history to Mr Seymour’s absence, the limited contact and information supplied, the attempts Vantiva had made to engage with him and to obtain an OH and/or GP report and concluded “Based on the ongoing absence and likelihood of his absence further extending, I have no prognosis of how long his illness is likely to last or to affect him for. Therefore, I cannot guarantee that he will be returning to work in a reasonable timeframe.”[570]We find based on the available evidence Mr Price was entitled to come to the view that Vantiva had taken reasonable steps to obtain the medical position and there was little more it could do in that respect. Similarly, the view he came to with regards to Mr Seymour (from 20 March 2023 (see (352))) and Ms Chater (from 12 June 2023 (see (451))) not engaging and Mr Price deciding to proceed with the dismissal hearing in Mr Seymour’s absence.[571]In such circumstances, an employer is entitled to make the decision to dismiss upon the limited information they have (see O’Donoghue (39.6)).[572]Those points aside, for the reasons we give above, we find in our considerable experience as an industrial relations jury that the steps Vantiva took to understand Mr Seymour’s current medical position and to try to liaise with him about alternatives went far beyond the steps that a reasonable employer might ordinarily take. Mr Price had reasonable grounds to come to the view that he came to.[573]We address the challenge Ms Chater raised in relation to the contractual nature of the policies starting at (295). We found those policies were not contractual. Even if we are wrong in that view Mr Seymour was sent them on 25 January 2023 and thus they applied from 25 February 2023.[574]Mr Rhodes points out the breach of a contractual position does not necessarily render a dismissal unfair applying Cabaj (see (39.6)), the issue for unfair dismissal is whether the process was a fair one applying s.98(4) (as amended).[575]Mr Price considered the alterations to Vantiva’s process that had been adopted including liaising with Ms Chater and not requiring face to face meetings including the offer of an alternative OH assessor. He concluded that :- 105 / 107 “… as Darren has failed to engage with me during this process and the only communication I have had is a very brief conversation with his partner, it is worth noting here that the relationship between employee and employer has significantly broken. Based on all the above, I do not think there is another option but to dismiss Darren from his employment on the grounds of ill health and capability. He will be dismissed with notice, and I will confirm all of this via letter to him.”[576]Based on our findings above we find he was entitled to come to that view.[577]Despite Mr Seymour’s non attendance at the dismissal meeting, we found Mr Price was entitled to proceed in his absence. As to the issue raised concerning the appeal (see our findings starting at (466)) for the reasons we give above Vantiva were entitled to treat it as withdrawn.[578]Applying the band of reasonable responses test, we find that the looking at the process adopted in the round, it was fair.[579]Mr Price considered alternatives to dismissal and concluded against the backdrop of the relationship having broken down due to Mr Seymour’s non-engagement that there were none. We find based on our findings he was entitled to do so.[580]If required to make a specific finding we would have determined that the relationship had broken down as long ago as the 8 November 2022 grievance meeting (see (164)) when Mr Seymour sought voluntary redundancy and Mr Seymour was concerned about how he might be perceived by his colleagues.[581]Accordingly, we find Vantiva has shown that the reason for dismissal was health (capability) on the basis Mr Seymour was unable to undertake his role. Further, Vantiva has shown there was no realistic prospect of him being fit to undertake his role within a reasonable time.[582]Even if we are wrong in relation to those points given the length of time Mr Seymour had been absent, his lack of engagement by the time of he final stage 3 meeting Mr Price was entitled to come to the view the working relationship had broken and this was one of those rare cases where his dismissal was by that point, a certainty.[583]Given Mr Seymour’s state of mind at the time of the events that concern us we do not consider it would be appropriate to consider the question of contribution and decline to do so or make any reduction on that basis.[584]Accordingly, Mr Seymour’s unfair dismissal complaint is not well founded and is dismissed. TIMING[585]Given our findings we do not need to address this issue and given the difficulties ascertaining when the various complaints were raised we do not propose to do so. 106 / 107 approved by me Employment Judge Perry Dated: 10 December 2025 All judgments (apart from those under rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Employment Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment. 107 / 107